F.O. State Papers.
February 10th 1763.
DEFINITIVE Treaty of Peace and Alliance between Great Britain France and Spain, concluded at Paris, with the separate Articles thereunto belonging.
Au nom de la Très Sainte & Indivisible Trinitè, Pere, Fils, & Saint Esprit. Ainsi soit il.
Soit notoire à Tous Ceux, qu'il appartiendra ou peut appartenir, en Maniere quelconque.
Il a plû au Tout Puissant de repandre l'Esprit d'Union & de Concorde sur les Princes, dont les Divisions avoient porté le Trouble dans les quatre Parties du Monde, & de leur inspirer le Dessein de faire succeder les Douceurs de la Paix aux Malheurs d'une longue et sanglante Guerre, qui, après s'être elevée entre L'Angleterre & La France, pendant le Regne du Serenissime & Tres Puissant Prince Georges 2. par la Grace de Dieu Roy de la Grande Bretagne, de glorieuse Memoire, a été continueé sous le Regne du Serenissime & Très Puissant Prince Georges 3. Son Successeur, & s'est communiquée dans ses Progres à l'Espagne & au Portugal; En Consequence, Le Serenissime & Très-Puissant Prince Georges 3., par la Grace de Dieu Roy de la Grande Bretagne, de France, et d'Irlande, Duc de Brunswick & de Lunebourg, Archi-Tresorier & Electeur du Saint Empire Romain; Le Serenissime & Très Puissant Prince, Louis 15. par la Grace de Dieu Roy Très Chretien-- Et Le Serenissime & Très Puissant Prince Charles 3. par la Grace de Dieu Roy d'Espagne, & des Indes, après avoir posé les Fondemens de la Paix dans les Preliminaires signés le 3: Novbre dernier à Fontainebleau; Et le Serme & Très puissant Prince Dom Joseph 1er par la Grace de Dieu Roy de Portugal & des Algarves, après y avoir accedé; Ont resolû de consommer sans Delai ce grand & important Ouvrage; A cet Effet les hautes Parties Contractantes ont nommé & constitué Leurs Ambassadeurs Extraordinaires & Ministres Plenipotentiaires respectifs; Savoir, Sa Sacrée Majesté Le Roy de la Grande Bretagne, Le Très illustre & très excellent Seigneur, Jean, Duc & Comte de Bedford, Marquis de Tavistock &c., Son Ministre d'Etat, Lieutenant General de Ses Armées, Garde de son Sceau Privé, Chevalier du Très Noble Ordre de la Jarretiere, & Son Ambassadeur Extraordinaire & Ministre Plenipotentiaire près de Sa Majesté Très Chretienne; Sa Sacrée Majesté Le Roy Très Chretien, le très illustre & très excellent Seigneur, Cesar Gabriel de Choiseul, Duc de Praslin, Pair de France, Chevalier de ses Ordres, Lieutenant General de ses Armées, & de la Province de Bretagne, Conseiller en tous ses Conseils, et Ministre & Secretaire d'Etat, & de ses Commandemens & Finances; Sa Sacrée Majesté Le Roy Catholique le très illustre & tres excellent Seigneur Dom Gerom Grimaldi, Marquis de Grimaldi, Chevalier des Ordres du Roy Très Chretien, Gentilhomme de la Chambre de Sa Majesté Catholique avec Exercice, & Son Ambassadeur Extraordinaire près de Sa Majesté Très Chretienne; Sa Sacrée Majesté Le Roy Très Fidele, le très illustre & très excellent Seigneur, Martin de Mello & Castro, Chevalier profès de l'Ordre de Christ, du Conseil de Sa Majesté Très Fidele, & Son Ambassadeur & Ministre Plenipotentiaire auprès de S. Mté Très Chretne; Lesquels, après s'être duëment communiqué leurs Plein pouvoirs en bonne Forme (& dont les Copies sont transcrites à la Fin du present Traité de Paix) sont convenus des Articles, dont**** la Teneur s'ensuit.
Il y aura une Paix Chretienne, universelle, & perpetuelle tant par Mer que par Terre, & une Amitié sincere & constante sera retablie entre Leurs Majestés Britannique, Très Chretienne, Catholique, & Très Fidele, & entre leurs Heritiers, & Successeurs, Royaumes, Etats, Provinces, Pays, Sujets, & Vassaux, de quelque Qualité et Condition qu'Ils soient, sans Exception de Lieux, ni de Personnes, en sorte que les Hautes Parties Contractantes apporteront la plus grande Attention à maintenir entr'Elles & leurs dits Etats & Sujets cette Amitié & Correspondance reciproque, sans permettre dorenavant, que de Part ni d'autre on commette aucunes Sortes d'Hostilités par Mer ou par Terre, pour quelque Cause ou sous quelque Pretexte que ce puisse être; Et on evitera soigneusement tout ce qui pourroit alterer à l'avenir l'Union heureusement retablie, s'attachant au contaire à se procurer reciproquement en toute Occasion tout ce qui pourroit contribuer à leur Gloire, Interêts, & Avantages mutuels, sans donner aucun Secours ou Protection directement ou indirectement à ceux, qui voudroient porter quelque Prejudice à l'une ou à l'autre des dites hautes Parties contractantes. Il y aura un Oubli general de tout ce qui a pû être fait ou commis avant ou depuis le Commencement de la Guerre, qui vient de finir.
Les Traités de Westphalie de mil six cent quarante huit, ceux de Madrid entre les Couronnes de la Grande Bretagne & d'Espagne de mil six cent soixante sept, & de mil six cent soixante dix, les Traités de Paix de Nimegue, de mil six cent soixante dix huit, & de mil six cent soixante dix neuf, de Ryswick de mil six cent quatre vingt dix sept, ceux de Paix & de Commerce d'Utrecht de mil sept cent treize, celui de Bade de mil sept cent quatorze, le Traité de la triple Alliance de La Haye de mil sept cent dix sept, celui de la quadruple Alliance de Londres de mil sept cent dix huit, le Traité de Paix de Vienne de mil sept cent trente huit, le Traité Definitif d'Aix la Chapelle de mil sept cent quarante huit, & celui de Madrid entre les Couronnes de la Grande Bretagne, & d'Espagne de mil sept cent cinquante, aussi bien que les Traités entre les Couronnes d'Espagne & de Portugal du 13. Fevrier mil six cent soixante huit, du 6. Fevrier mil sept cent quinze, & du 12. Fevrier mil sept cent soixante un, & celui du 11. Avril mil sept cent treize entre la France & le Portugal, avec les Guaranties de la Grande Bretagne; servent de Base & de Fondement à la Paix, & au present Traité; & pour cet Effet ils sont tous renouvellés & confirmés dans la meilleure Forme, ainsi que tous les Traités en general, qui subsistoient entre les hautes Parties contractantes avant la Guerre, & comme s'ils étoient inserés ici Môt à Môt, en sorte qu'ils devront être observés exactement à l'avenir dans toute leur Teneur, & religieusement executés de Part & d'autre dans tous leurs Points, auxquels il n'est pas derogé par le present Traité, nonobstant tout ce qui pourroit avoir été stipulé au contraire par aucune des Hautes Parties contractantcs; Et toutes les dites Parties declarent, qu'Elles ne permettront pas qu'il subsiste aucun Privilege, Grace, ou Indulgence contraires aux Traités cidessus confirmés, à l'Exception de ce qui aura été accordé et stipulé par le present Traité.
Tous les Prisonniers faits de Part & d'autre tant par Terre que par Mer, et les Otages enlêvés ou donnés, pendant la Guerre, et jusqu'à ce Jour, seront restitués sans Rançon dans six Semaines au plus tard, à compter du Jour de l'Echange de la Ratification du present Traité, chaque Couronne soldant respectivement les Avances, qui auront été faites pour la Subsistance & l'Entretien de ces Prisonniers par le Souverain du Pays, où Ils auront été detenûs, conformément aux Reçûs & Etats constatés & autres Titres autentiques, qui seront fournis de Part & d'autre. Et il sera donné reciproquement des Suretés pour le Payement des Dettes, que les Prisonniers auroient pû contracter dans les Etats, où Ils auroient été detenûs, jusqu'à leur entiere Liberté.--Et tous les Vaisseaux, tant de Guerre que marchands, qui auroient été pris depuis l'Expiration des Termes convenûs pour la Cessation des Hostilités par Mer, seront pareillement rendûs de bonne Foy, avec tous leurs Equipages, & Cargaisons; Et on procedera à l'Execution de cet Article immediatement après l'Echange des Ratifications de ce Traité.
Sa Majesté Très Chretienne renonce à toutes les Pretensions, qu'Elle a formées autrefois, ou pû former, à la Nouvelle Ecosse, ou l'Acadie, en toutes ses Parties, & la garantit toute entiere, & avec toutes ses Dependances, au Roy de la Grande Bretagne. De plus, Sa Majesté Trés Chretienne cede & garantit à Sa dite Majesté Britannique, en toute Proprieté, le Canada avec toutes ses Dependances, ainsi que l'Isle du Cap Breton, & toutes les autres Isles, & Côtes, dans le Golphe & Fleuve S' Laurent, & generalement tout ce qui depend des dits Pays, Terres, Isles, & Côtes, avec la Souveraineté, Proprieté, Possession, & tous Droits acquis par Traité, ou autrement, que le Roy Très Chretien et la Couronne de France ont eus jusqu'à present sur les dits Pays, Isles, Terres, Lieux, Côtes, & leurs Habitans, ainsi que le Roy Très Chretien cede & transporte le tout au dit Roy & à la Couronne de la Grande Bretagne, & cela de la Maniere & de la Forme la plus ample, sans Restriction, & sans qu'il soit libre de revenir sous aucun Pretexte contre cette Cession & Garantie, ni de troubler la Grande Bretagne dans les Possessions sus-mentionnées. De son Coté Sa Majesté Britannique convient d'accorder aux Habitans du Canada la Liberté de la Religion Catholique; En Consequence Elle donnera les Ordres les plus precis & les plus effectifs, pour que ses nouveaux Sujets Catholiques Romains puissent professer le Culte de leur Religion selon le Rit de l'Eglise Romaine, en tant que le permettent les Loix de la Grande Bretagne.-Sa Majesté Britannique convient en outre, que les Habitans François ou autres, qui auroient eté Sujets du Roy Très Chretien en Canada, pourront se retirer en toute Sûreté & Liberté, où bon leur semblera, et pourront vendre leurs Biens, pourvû que ce soit à des Sujets de Sa Majesté Britannique, & transporter leurs Effets, ainsi que leurs Personnes, sans être genés dans leur Emigration, sous quelque Pretexte que ce puisse être, hors celui de Dettes ou de Procés criminels; Le Terme limité pour cette Emigration sera fixé à l'Espace de dix huit Mois, à compter du Jour de l'Echange des Ratifications du present Traité.
Les Sujets de la France auront la Liberté de la Pêche, & de la Secherie, sur une Partie des Côtes de l'Isle de Terre-Neuve, telle qu'elle est specifiée par l'Article 13. du Traité d'Utrecht, lequel Article est renouvellé & confirmé par le present Traité, (à l'Exception de ce qui regarde l'Isle du Cap Breton, ainsi que les autres Isles & Côtes dans L'Embouchure et dans le Golphe st Laurent;) Et Sa Majesté Britannique consent de laisser aux Sujets du Roy Très Chretien la Liberté de pêcher dans le Golphe St Laurent, à Condition que les Sujets de la France n'exercent la dite Pêche, qu'à la Distance de trois Lieues de toutes les Côtes appartenantes à la Grande Bretagne, soit celles du Continent, soit celles des Isles situées dans le dit Golphe St Laurent. Et pour ce qui concerne la Pêche sur les Côtes de l'Isle du Cap Breton hors du dit Golphe, il ne sera paspermisauxSujetsdu Roy Très Chretien d'exercer la dite Pêche, qu'à la Distance de quinze Lieues des Côtes de l'Isle du Cap Breton; Et la Pêche sur les Côtes de la Nouvelle Ecosse, ou Acadie, et par tout ailleurs, hors du dit Golphe, restera sur le Pied des Traités anterieurs.
Le Roy de la Grande Bretagne cede les Isles de St Pierre & de Miquelon, en toute Proprieté, à Sa Majesté Très Chretienne, pour servir d'Abri aux Pêcheurs François; Et Sa dite Majesté Très Chretienne s'oblige à ne point fortifier les dites Isles, à n'y établir que des Batimens civils pour la Commodité de la Pêche, & à n'y entretenir qu'une Garde de cinquante Hommes pour la Police.
Afin de retablir la Paix sur des Fondcmens solides & durables, & écarter pour jamais tout Sujet de Dispute par Rapport aux Limites des Territoires Britanniques et François sur le Continent de l'Amerique, il est convenû, qu'a l'avenir les Confins entre les Etats de Sa Majesté Britannique & ceux de Sa Majesté Très Chretienne en cette Partie du Monde, seront irrevocablement fixés par une Ligne tirée au milieu du Fleuve Mississippi depuis sa Naissance jusqu'à la riviere d'Iberville, & de là par une Ligne tirée au milieu de cette Riviere & des Lacs Maurepas & Pontchartrain jusqu'à la Mer; Et à cette Fin le Roy Très Chretien cede, en toute Proprieté, & garantit à Sa Majesté Britannique la Riviere & le Port de la Mobile, & tout de qu'Il possede, ou a dû posseder, du Coté gallchc du flcuve Mississipi, à l'exception de la Ville de la Nouvelle Orleans, & de l'Isle dans laquelle Elle est située, qui demeureront à la France; Bien entendû, que la Navigation du Fleuve Mississippi sera également libre tant aux Sujets de la Grande Bretagne comme à ceux de la France, dans toute sa Largeur, & toute son Etendue, depuis sa Source jusqu'à la Mer, et nommement cette Partie, qui est entre la susdite Isle de la Nouvelle Orleans & la Rive droite de ce Fleuve, aussi bien que l'Entrée & la Sortie par son Embouchure. Il est de plus stipulé, que les Batimens appartenants aux Sujets de l'une ou de l'autre Nation ne pourront être arrêtés, visités, ni assujettis au Payement d'aucun Droit quelconque.--Les Stipulations inserées dans l'Article 4. en Faveur des Habitans du Canada auront Lieu de même pour les Habitans des Pays cedés par cet Article.
Le Roy de la Grande Bretagne restituera à la France les Isles de la Guadeloupe, de Mariegalante, de la Desirade, de la Martinique, & de Belle-Isle; Et les Places de ces Isles seront rendaes dans le même Etat, où Elles étoient, quand la Conquête en a été faite par les Armes Britanniques; Bien entendû, que les Sujets de Sa Majesté Britannique, qui se seroient établis, ou ceux qui auroient quelques Affaires de Commerce à regler dans les dites Isles & autres Endroits restitués à la France par le present Traité, auront la Liberté de vendre leurs Terres, & leurs Biens, de regler leurs Affaires, de recouvrer leurs Dettes, & de transporter leurs Effets, ainsi que leurs Personnes, à bord des Vaisseaux qu'il leur sera permis de faire venir aux dites Isles, & autres Endroits, restitués comme dessus, & qui ne serviront qu'à cet Usage seulement, sans être genés à Cause de leur Religion, ou sous quelqu'autre Pretexte que ce puisse être hors celui de Dettes ou de Procés criminels.--Et pour cet Effet le Terme de dix-huit Mois est accordé aux Sujets de Sa Majesté Britannique à compter du Jour de l'Echange des Ratifications du present Traité.--Mais comme la Liberté, accordée aux Sujets de Sa Majesté Britannique, de transporter leurs Personnes & leurs Effets sur des Vaisseaux de leur Nation pourroit être sujette à des Abus, si l'on ne prenoit la Precaution de les prevenir, il a été convenû expressement, entre Sa Majesté Britannique & Sa Majesté Très Chretienne, que le Nombre des Vaisseaux Anglois, qui auront la Liberté d'aller aux dites Isles & Lieux restitués à la France sera limité, ainsi que le Nombre de Tonneaux de chacun, qu'ils iront en lest, partiront dans un Terme fixé, & ne feront qu'un seul Voyage; Tous les Effets, appartenants aux Anglois, devant être embarqués en même Tems. Il a ete convenû en outre, que Sa Majesté Très Chretienne fera donner les Passeports necessaires pour les dits Vaisseaux; que, pour--plus grande Sureté, il sera libre de mettre deux Commis ou Gardes François sur chacun des dits Vaisseaux, qui seront visités dans les Atterages & Ports des dites Isles, & Lieux, restitués à la France; Et que les Marchandises, qui s'y pourront trouver, seront confisquées.
Le Roy Très Chretien cede & garantit à Sa Majesté Britannique, en toute Proprieté, les Isles de la Grenade & des Grenadines, avec les mêmes Stipulations en Faveur des Habitans de cette Colonie, inserées dans l'Article 4. pour ceux du Canada; Et le Partage des Isles, appellées neutres, est convenû et fixé de maniere que celles de St Vincent la Dominique, & Tabago, resteront, en toute Proprieté, à la Grande Bretagne, & que celle de St Lucie sera remise à la France pour en jouir, pareillement en toute Propriété. --Et les hautes Parties contractantes garantissent le Partage ainsi stipulé
Sa Majesté Britannique restituera à la France l'Isle de Gorée, dans l'Etat, où Elle s'est trouvée, quand Elle a ete conquise; Et Sa Majeste Très Chretienne cede, en toute Proprieté, et garantit au Roy de la Grande Bretagne la Riviere de Senegal, avec les Forts & Comptoirs de St Louis, de Podor, & de Galam, & avec tous les Droits & Dependances de la dite Riviere de Senegal.
Dans les Indes Orientales La Grande Bretagne restituera à la France, dans l'Etat où ils sont aujourd'hui, les differens Comptoirs, que cette Couronne possedoit tant sur la Côte de Choromandel & d'Orixa, que sur celle de Malabar, ainsi que dans le Bengale, au Commencement de l'Année mil sept cent quarante neuf; Et Sa Majesté Très Chretienne renonce à toute Pretension aux Acquisitions, qu'Elle avoit faites sur la Côte de Choromandel, & d'Orixa, depuis le dit Commencement de l'Année mil sept centquarante neuf.--Sa Majte Très Chretienne restituera, de son Coté, tout ce qu'Elle pourroit avoir conquis sur la Grande Bretagne dans les Indes Orientales pendant la presente Guerre, & fera restituer nommement Natal & Tapanouly dans l'Isle de Sumatra. Elle s'engage de plus à ne point eriger de Fortifications, & à ne point entretenir de Troupes dans aucune Partie des Etats du Subah de Bengale.--Et afin de conserver la Paix future sur la Côte de Choromandel & d'Orixa, les Anglois & les François reconnoitront Mahomet Ali Khan pour legitime Nabob du Carnate, & Salabat Jing pour legitime Subah de Decan; Et les deux Parties renonceront à toute Demande ou Pretension de Satisfaction qu'Elles pourroient former à la Charge, l'une de l'autre, ou à celle de leurs Alliés Indiens pour les Depredations ou Degats commis soit d'un Coté, soit de l'autre pendant la Guerre.
L'Isle de Minorque sera restituée à Sa Majesté Britannique, ainsi que le Fort st Philippe, dans le même Etat où ils se sont trouvés, lorsque la Conquête en a eté faite par les Armes du Roy Très Chretien, & avec l'Artillerie, qui y etoit lors de la Prise de la dite Isle & du dit Fort.
La Ville & le Mort de Dunkerque seront mis dans l'Etat fixé par le dernier Traité d'Aix la Chapelle, & par les Traités anterieurs;--La Cunette sera détruite immediatement après l'Echange des Ratifications du present Traité, ainsi que les Forts & Batteries, qui defendent l'Entrée du Coté de la Mer; Et il sera pourvû en même Tems à la Salubrité de l'Air & à la Santé des Habitans par quelqu'autre Moyen à la Satisfaction du Roy de la Grande Bretagne.
La France restituera tous les Pays, appartenants à l'Electorat d'Hanovre, au Landgrave de Hesse, au Duc de Brunswick, & au Comte de la Lippe Buckebourg, qui se trouvent, ou se trouveront, occupés par les Armes de Sa Majesté Très Chretienne; Les Places de ces differens Pays seront renduës dans le même Etat où Elles étoient, quand la Conquête en a eté faite par les Armes Françoises; Et les Pieces d'Artillerie, qui auront eté transportées ailleurs, seront remplacées par le même Nombre de même Calibre, Poids, & Metal.
En Cas que les Stipulations, contenues dans l'Article 13, des Preliminaires ne fussent pas accomplies lors de la Signature du present Traité, tant par Rapport aux Evacuations à faire par les Armées de la France des Places de Cleves, de Wesel, de Gueldres, & de tous les Pays, appartenants au Roy de Prusse, que par Rapport aux Evacuations à faire par les Armées Britannique & Françoise des Pays, qu'Elles occupent en Westphalie, Basse-Saxe, sur le Bas-Rhin, le Haut Rhin, & dans tout l'Empire, & à la Retraite des Troupes dans les Etats de Leurs Souverains respectifs, Leurs Majestés Britannique & Très Chretienne promettent de proceder de bonne Foy, avec toute la Promptitude que le Cas pourra permettre, aux dites Evacuations, dont Ils stipulent l'Accomplissement parfait avant le quinze de Mars prochain, ou plutôt, si faire se peut.--Et Leurs Majestés Britannique & Très Chretienne s'engagent de plus, & se promettent, de ne fournir aucun Secours, dans aucun Genre, à Leurs Alliés respectifs, qui resteront engagés dans la Guerre d'Allemagne.
ARTI CLE 16
La Décision des Prises, faites en Tems de Paix par les Sujets de la Grande Bretagne sur les Espagnols, sera remise aux Cours de Justice de l'Amirauté de la Grande Bretagne, conformement aux Regles établies parmi toutes les Nations, de sorte que la Validité des dites Prises entre les Nations Britannique & Espagnole sera decidée & jugée, selon le Droit des Gens, & selon les Traités, dans les Cours de Justice de la Nation, qui aura fait la Capture.
Sa Majesté Britannique fera demolir toutes les Fortifications, que ses Sujets pourront avoir erigées dans la Baye de Honduras, & autres Lieux du Territoire de l'Espagne dans cette Partie du Monde, quatre Mois après la Ratification du present Traité; Et Sa Majesté Catholique ne permettra point, que les Sujets de Sa Majesté Britannique, ou leurs Ouvriers, soient inquietés ou molestés sous aucun Pretexte que ce soit, dans les dits Lieux, dans leur Occupation de couper, charger, & transporter, le Bois de Teinture ou de Campêche; Et pour cet Effet Ils pourront bâtir, sans Empêchement, & occuper sans Interruption, les Maisons & les Magazins, qui sont necessaires pour Eux, pour leurs Familles, & pour leurs Effets; Et Sa Majesté Catholique leur assure par cet Article l'entiere Jouïssance de ces Avantages, & Facultés sur les Côtes & Territoires Espagnols, comme il est stipulé ci-dessus, immediatement après la Ratification du present Traité.
Sa Majesté Catholique se desiste, tant pour Elle que pour ses Successeurs, de toute Pretension, qu'Elle peut avoir formée en Faveur des Guipuscoans & autres de ses Sujets au Droit de pêcher aux Environs de l'Isle de Terre-Neuve.
Le Roy de la Grande Bretagne restituera à l'Espagne tout le Territoire qu'II a conquis dans l'Isle de Cuba, avec la Place de la Havane; Et cette Place, aussi bien que toutes les autres Places de la dite Isle, seront rendues dans le même Etat, où Elles etoient, quand Elles ont été conquises par les Armes de Sa Majesté Britannique: Bien entendû, que les Sujets de Sa Majesté Britannique, qui se seroient établis, ou ceux qui auroient quelques Affaires de Commerce à regler, dans la dite Isle, restituée à l'Espagne par le present Traité, auront la Liberté de vendre leurs Terres, & leurs Biens, de regler leurs Affaires, de recouvrer leurs Dettes, et de transporter leurs Effets ainsi que leurs Personnes à bord des Vaisseaux, qu'il leur sera permis de faire venir à la dite Isle, restituée comme dessus, & qui ne serviront qu'à cet Usage seulement, sans être genés à Cause de Icur Religion, ou sous quelqu'autre Pretexte que ce puisse être, hors celui de Dettes ou de Procès criminels; Et pour cet Effet le Terme de dix huit Mois est accordé aux Sujets de Sa Majesté Britannique, à compter du Jour de l'Echange des Ratifications du present Traité.--Mais comme la Liberté, accordée aux Sujets de Sa Majesté Britannique de transporter leurs Personnes & leurs Effets sur des Vaisseaux de leur Nation, pourroit être sujcttc à dcs Abus, si l'on ne prenoit la Precaution de les prevenir, il a été convenû expressement entre Sa Majesté Britannique & Sa Majesté Catholique, que le Nombre des Vaisseaux Anglois, qui auront la Liberté d'aller à la dite Isle restituée à l'Espagne, sera limité, ainsi que le Nombre de Tonneaux de chacun, qu'ils iront en lest, partiront dans un Terme fixé, & ne feront qu'un seul Voyage; Tous les Effets, appartenants aux Anglois, devant être embarqués en même Tems.--Il a été convenû en outre, que Sa Majesté Catholique fera donner les Passeports necessaires pour les dits Vaisseaux; que, pour plus grande Sureté, il sera libre de mettre deux Commis ou Gardes Espagnols sur chacun des dits Vaisseaux, qui seront visités dans les Atterages et Ports de la dite Isle restituée à l'Espagne et que les Marchandises, qui s'y pourront trouver, seront confisquées.
En Consequence de la Restitution stipulée dans l'article precedent, Sa Majesté Catholique cede et garantit, en tout Proprieté, à Sa Majesté Britannique, la Floride, avec le Fort de S' Augustin, & la Baye de Pensacola, ainsi que tout ce que l'Espagne possede sur le Continent de l'Amerique septentrionale, à l'Est, ou au Sud Est, du fleuve Mississippi, & generalement tout ce qui depend des dits Pays & Terres, avec la Souveraineté, Proprieté, Possession, & tous Droits acquis par Traité ou autrement, que Le Roy Catholique & la Couronne d'Espagne, ont eus jusqu'à present sur les dits Pays, Terres, Lieux, & leurs Habitans; Ainsi que Le Roy Catholique cede & transporte le tout au dit Roy & à la Couronne de la Grande Bretagne, & cela de la Maniere & de la Forme la plus ample; Sa Majesté Britannique convient de son Coté d'acccorder aux Habitans des Pays ci-dessus cedés la Liberté de la Religion Catholique; En Consequence Elle donnera les Ordres les plus exprès & les plus effectifs, pour que ses nouveaux Sujets Catholiques Romains puissent professer le Culte de leur Religion selon le Rit de l'Eglise Romaine, en tant que le permettent les Loix de la Grande Bretagne: Sa Majesté Britannique convient en outse, que les Habitans Espagnols, ou autres qui auroient eté Sujets du Roy Catholique, dans les dits Pays, pourront se retirer en toute Sureté et Liberté, où bon leur semblera et pourront vendre leurs Biens, pourvû que ce soit à des Sujets de Sa Majesté Britannique, & transporter leurs Effets, ainsi que leurs Personnes, sans être genés dans leur Emigration, sous quelque Pretexte que ce puisse être, hors celui de Dettes ou de Procès criminels; Le Terme, limité pour cette Emigration, étant fixé à l'Espace de dix-huit Mois, à compter du Jour de l'Echange des Ratifications du present Traité.--Il est de plus stipulé, que Sa Majesté Catholique aura la Faculté de faire transporter tous les Effets, qui peuvent Lui appartenir, soit Artillerie, ou autres.
Les Troupes Francoises & Espagnoles evacueront tous les Territoires, Campagnes, Villes, Places, & Chateaux, de Sa Majesté Très Fidele, en Europe, sans Reserve aucune, qui pourront avoir eté conquis par les Armées de France & d'Espagne, & les rendront dans le même Etat où Ils étoient, quand la Conquête en a eté faite, avec la même Astillerie, & les Munitions de Guerre, qu'on y a trouvées; Et à l'Egard des Colonies Portugaises, en Amerique, Afrique, ou dans les Indes Orientales, s'il y étoit arrivé quelque Changement, toutes Choses seront remises sur le même Pied, où Elles étoient, et en Conformité des Traités precedens, qui subsistoient entse les Cours de France, d'Espagne, & de Portugal, avant la presente Guerre.
Tous les Papiers, Lettres, Documens & Archives, qui se sont trouvés dans les Pays, Terres, Villes, & Places, qui sont restitués, & ceux appartenants aux Pays cedés, seront deliverés, ou fournis, respectivement, & de bonne Foi, dans le même Tems, s'il est possible, de la Prise de Possession, ou au plus tard, quatre Mois après l'Echange des Ratifications du present Traité, en quelque Lieu que les dits Papiers ou Documens puissent se trouver.
Tous les Pays, & Territoires, qui pourroient avoir eté conquis, dans quelque Partie du Monde que ce soit, par les Armes de Leurs Majestés Britannique & Tsès Fidele, ainsi que par celles de Leurs Majestés Très Chretienne & Catholique, qui ne sont pas compris dans le present Traité, ni à Titre de Cessions, ni a Titre de Restitutions, seront rendûs sans Diinculté, & sans exiger de Compensation.
Comme il est necessaire de designer une Epôque fixe pour les Restitutions & les Evacuations à faire, par chacune des Hautes Parties Contractantes, il est convenû que les Troupes Britanniques & Françoises completteront, avant le quinze de Mars prochain, tout ce qui restera à executer des Articles 12 & 13 des Preliminaires, signés le 3 Jour de Novembre passé, par Rapport à l'Evacuation à faire dans l'Empire, ou ailleurs.--L'Isle de Belle-isle sera évacuée six semaines après l'Echange des Ratifications du present Traité, ou plutôt si faire se peut.--La Guadeloupe, la Desirade, Mariegalante, la Martinique, & St Lucie, trois Mois apr~s l'Echange des Ratifications du present Traité, ou plutôt, si faire se peut.--La Grande Bretagne entrera pareillement au Bout de trois Mois après l'Echange de Ratifications du present Traité, ou plutôt si faire se peut, en Possession de la Riviere & du Port de la Mobile, & de tout ce qui doit former les Limites du Territoire de La Grande Bretagne du Coté du Fleuve de Mississippi, telles qu'elles sont specifiées dans l'Article 7.--L'Isle de Gorée sera évacuée par La Grande Bretagne trois Mois après l'Echange des Ratifications du present Traité;--Et L'Isle de Minorque par La France à la même Epôque, ou plutôt si faire se peut;--Et, selon les Conditions de l'Article 6, La France entrera de même en Possession des Isles de St Pierre & de Miquelon, au Bout de trois Mois après l'Echange des Ratifications du present Traité.--Les Comptoirs aux Indes Orientales seront rendûs six Mois après l'Echange des Ratifications du present Traité, ou plutôt si faire se peut.--La Place de la Havane avec tout ce qui a eté conquis dans l'Isle de Cuba, sera restituée trois Mois après l'Echange des Ratifications du present Traité, ou plutôt si faire se peut; Et en même Tems La Grande Bretagne entrera en Possession du Pays cedé par l'Espagne selon l'Article 20.--Toutes les Places & Pays de Sa Majesté Très Fidèle en Europe seront restitués immediatement après l'Echange des Ratifications du present Traité; Et les Colonies, Portugaises, qui pourront avoir eté conquises, seront restituées dans l'Espace de trois Mois dans les Indes Occidentales, & de six Mois dans les Indes Orientales, après l'Echange des Ratifications du present Traité, ou plutôt si faire se peut.--Toutes les Places, dont la Restitution est stipulée ci-dessus, seront rendues avec l'Artillerie, & les Munitions, qui s'y sont trouvées lors de la Conquête.--En Consequence de quoi les Ordres necessaires seront envoyés par chacune des Hautes Parties Contractantes avec les Passeports reciproques pour les Vaisseaux, qui les porteront, immediatement après l'Echange des Ratifications du present Traité.
Sa Majesté Britannique, en sa Qualité d'Electeur de Brunswick Lunebourg, tant pour Lui que pour ses Heritiers & Successeurs, & tous les Etats & Possessions de Sa de Majesté en Allemagne sont compris & garantis par le present Traité de Paix.
Leurs Sacrées Majestés, Britannique, Très Chretienne, Catholique, & Très Fidele, promettent d'observer sincerement & de bonne Foy tous les Articles, contenûs & établis dans le present Traité; Et Elles ne souffriront pas, qu'il y soit fait de Contravention directe ou indirecte par leurs Sujets respectifs; Et les susdites Hautes Parties Contractantes se garantissent generalement & reciproquement toutes les Stipulations du present Traité.
Les Ratifications solemnelles du present Traité, expediées en bonne & due Forme, seront échangées, en cette Ville de Paris, entre Les Hautes Parties Contractantes dans l'Espace d'un Mois, ou plutôt s'il est possible, à compter du Jour de la Signature du present Traité.
En Foy de quoi Nous soussignés, Leurs Ambassadeurs Extraordinaires & Ministres Plenipotentiaires avons signé de Notre Main, en leur Nom, & en Vertu de nos Plein pouvoirs, le present Traité Definitif, & y avons fait apposer le Cachet de Nos Armes.
Fait à Paris le dix de Fevrier mil sept cent soixante trois.
Choiseul duc de Praslin.
el Marqs de Grimaldi.
Quelques uns des Titres, employés par les Puissances Contractantes, soit dans les Pleinpouvoirs, et autres Actes, pendant le Cours de la Negotiation, soit dans le Preambule du present Traité, n'etant pas generalement reconnus, il a été convenu, qu'il ne pourroit jamais en resulter aucun prejudice pour aucune des dites Parties Contractantes, et que les Titres, pris ou omis, de part et d'autre, à l'Occasion de la dite Negociation, et du present Traité ne pourrent etre cités ni tirés à Consequence.
Il a été convenu et arreté que la Langue Françoise, employéc dans tous les Exemplaires du present Traité, ne formera point un Exemple, qui puisse etre allegué, ni tiré à consequence, ni porter prejudice, en aucune Maniere, à aucune des Puissances Contractantes; Et que l'on se conformera, a l'avenir, à ce qui a été observé, et doit etre observé, à l'egard, et de la Part, des Puissances, qui sont en usage, et en Possession, de donner, et de recevoir, des Exemplaires, de semblables Traités, en une autre Langue que la Françoise.--Le present Traité ne laissant pas d'avoir la même Force et Vertu, que si le susdit Usage y avoit été observé.
Quoique le Roy de Portugal n'ait pas signé le present Traité definitif, Leurs Majestés Britannique, Très Chretienne, et Catholique reconnoissent néanmoins, que Sa Majesté Très Fidele y est formellement comprise comme partie contractante, et comme si elle avoit expressement Signé le dit Traité; En Consequence, Leurs Majestés Britannique, Très Chretienne et Catholique, s'engagent respectivement et conjointement avec Sa Majesté Très Fidele, de la façon la plus expresse et la plus obligatoire, à l'Execution de toutes, et chacune des clauses, contenues dans le dit Traité, moyennant Son Acte d'Accession.
Les presens Articles separés auront la meme Force, que s'ils etoient inserés dans le Traité.
En Foy de quoi nous Soussignés Ambassadeurs Extraordinaires et Ministres Plenipotentiaires de Leurs Majestes Britannique, Tres Chretienne, et Catholique, avons Signé les presens Articles separés, et y avons fait apposer le Cachet de Nos Armes.
Fait à Paris le Dix de Fevrier Mil sept cent soixante et trois.
Choiseul duc de Praslin.
el Marqs de Grimaldi.
Georgius Tertius, Dei Gratiâ, Magnæ Britanniæ Franciæ, et Hiberniæ Rex, Fidei Defensor, Dux Brunsvicensis et Luneburgensis, sacri Romani Imperii Archi-Thesaurarius, et Princeps Elector &ca : Omnibus et singulis ad quos præsentes hæ Literæ pervenerint, Salutem : Cum ad Pacem perficiendam inter Nos, et Bonum Fratrem Nostrem Regem Fidelissimum ex unâ Parte, et bonos Fratres Nostros Reges Christianissimum et Catholicum, ex alterâ, qæ jam, signatis apud Fontainebleau Die Mensis currentis Tertio Articulis Preliminariis, feliciter inchoata est, eamque ad Finem exoptatum perducendam, Virum aliquen idoneum ex Nostrâ Parte, plenâ Auctoritate munire Nobis è Re visum sit;Sciatis quod Nos Fide, Judicio, atque in Rebus maximi Monmenti tractandis Usu ac Solertiâ, perdilecti et perquàm Fidelis, Consanguinei, et Consiliarii Nostri, Johannis Ducis et Comitis de Bedford, Marchionis de Tavistock, Baronis Russel de Cheneys, Baronis Russel de Thornhaugh; et Baronis Howland de Streatham. Exercituum Nostrorum Locum tenetis Generalis, Privati Nostri Siglii Custodis, Comitatuum Bedfordiæ et Devoniæ Locum tenetis, et Custodis Rotulorum, Nobilissimi Ordinis Nostri Periscelidis Equitis, et Legati Nostri Extraordinarii et Plenipotentiarii aud Bonum Fratrem Nostrum Regem Christinisimum Plurimum confisi, Eundem nominavimus, fecimus contituimus et ordinavimus, quemadmodum per præsentes, nominamus facimus constituimus et ordinamus, verum, certum, et indubitatum Ministrum, Commissarium, Deputatum, Procuratorem, et Plenipotentiarium Nostrum, dantes Eidem, omnem, et omnimodam Potestatem, Facultatem, Authoritatemque, necnon Mandatum generale, pariter ac speciale, (ita tamen ut generale speciali non deroget, nec è contrà) pro Nobis et Nostro Nomine, unà cum Legatis, Commissariis Deputatis, et Plenipotentiariis Principum quorum interesse poterit, sufficietni itidem Potestate atque Authoritate instructis, tam singulatim ac divisim, quam aggregatim ac conjunctim, congrediendi et colloquendi, atque cum Ipsis de Pace firmâ et stabili, sincerâque Amicitiâ et Concordiâ, quantocius restituendis, conveniendi, tractandi, consulendi, et concludendi, idque omne quod ita conventum et conclusum fuerit, pro Nobis, et Nostro Nomine, subsignandi, atque Tractatum, Tractatusve, super ita conventis et conclusis, conficiendi, omniaque alia quæ ad Opus supra dictum feliciter exequendum pertinent,, transigendi, tam amplis Modo et Formâ, ac Vi, Effectuque pari, ac Nos, si interessemus, facere, et præstare possemus; Spondentes, et in Verbo Regio promittentes, Nos omnia et singula quæunque à dicto Nostro Plenipotentiario transigi et concludi contigerit, gratum, ratum, et acceptum, omni meliori Modo, habituros, neque passuros unqam, ut in toto, vel in Parte, à qoupiam violentur, aut ut eiuml; in contrarium eatur. In quorum omnium majorem Fidem et Robur Præsentibus, Manu Nostrâ Regiâ signatis, Magnum Nostrum Magnæ Britanniæ Sigillum appendi fecimus, Quæ Espagne et le Ministre Plenipotentiaire de notre Très cher et très Amè bon frere et Cousin le Roi de Portugal, revêtus de Plcinpouvoirs en bonne forme, arrêter conclure et signer tels articles, conditions, conventions, declarations, Traité définitif, accessions et autres actes quelconques qu'Il Jugera convenables pour assûrer et affermir le grand ouvrage de la Paix; le tout avec la même liberté et autorité que nous pourrions faire nous-mêmes, si nous y étions presens en personne, encore qu'il y eût quelque chose qui requit un mandement plus special qu'il n'est contenu dans ces presentes; Promettant en foi et parole de Roy, d'avoir agréable, tenir ferme et stable à Toujours, accomplir et executer ponctuellement tout de que notre dit Cousin le Duc de Praslin aura stipulé, promis et signé en vertu du present pleinpouvoir sans jamais y contrevenir, ni permettre qu'il y Soit contrevenu pour quelque cause et sous quelque pretexte que ce puisse être, comme aussi d'en faire expedier nos Lettres de ratifications en bonne forme et de les faire delivrer pour &ecir c;tre echangées dans le têms dont il Sera convenu. Car tel est notre Plaisir. En temoin de quoi nous avons fait mettre notre scel à ces presentes. Donné à Versailles le Septieme jour du mois de fevrier l'an de grace mille sept cent soixante trois et de notre Regne le quarante huitieme, signé Louis et sur le repli, Par le Roi, le Duc de Choiseul. Scellé du grand sceau de cire jaune.
Don Carlos, por la Gracia de Dios, Rey de Castilla, de Leon, de Aragon, de las dos Sicilias, de Jerusalem, de Navarra, de Granada, de Toledo, de Valencia, de Galicia, de Mallorca, de Sevilla, de Cerdêna, de Cordova, de Corcega, de Murcia, de Jaen, de los Algarbes, de Algecira, de Gibraltar, de las Islas de Canaria, de las Indias Orientales y Occidentales, Islas y Tierra firme del Mar Oceano; Archiduque de Austria; Duque de Borgôna, de Brabante, y Milan; Conde de Absburg, de Flandes, del Tirol y Barcelona; Senôr de Vizcaya, y de Molina &ca: Por quanto haviendose, concluido y firmado en el Real sitio de Fontainebleau el Dia tres de Noviembre del presente Anô, y cangeadose las respectivas Ratificaciones el veinte y dos del mismo mes por Ministros autorizados a este Fin, los Preliminares de una Paz solida y duradera entre esta Corona, y la de Francia de una Parte, la de Inglaterra y la de Portugal de Otra; en los quales se promete venir luego à un tratado Definitivo, estableciendo y arreglando los Puntos Capitales sobre que ha de girar; y respecto a que del mismo modo que concedi mi Plenopoder para tratar, ajustar, y firmar los mencionados Preliminares a vos Don Geronimo Grimaldi, Marques de Grimaldi, Caballero de la Orden de Santi Spiritus, mi Gentil-hombre de Camara con Ejercicio, y mi Embajador Extraordinario al Rey Christianissimo, Se necessita que a Vos, u a otro le conceda para tratar, ajsustar, y firmar el mencionado prometido tratado Definitivo de Paz: Por tanto estando vos el citado Don Geronimo Grimaldi, Marques de Grimaldi en el parage necessario y teniendo yo cada dia mas Motivos para fiaros esta, y otras tales Importancias de mi Corona, por vuestra acrisolada Fidelidad y zelo, Capacidad y Prudencia; he venido en constituiros mi Ministro Plenipotentiario y en concederos todo mi Plenopoder para que en mi Nombre y representando mi propria Persona, Trateis, Arregleis, convengais y firmeis dicho tratado Definitivo de Paz, entre mi Corona y la de Francia de una Parte, la de Inglaterra y la de Portugal de Otra, con los Ministros que estuvieren autorizados igual y especialmente por sus respectivos Soberanos ad mismo Fin:dando, como doi des de ahora por grato y rato todo lo que assi Trateis Concluyais y firmeis; y ofreciendo baso mi palabra Real que lo observaré y cumpliré, lo haré observar y cumplir como si por mi mis mo lo huviesse tratado, concludo, y firmado. En fe de lo qual hize expedir el presente firmado de mi Mano, sellado con mi Sello secreto, y refrendado de mi infrascrito Consejero de Estado, y mi Primer Secretario del Despacho de Estado y de la Guerra. En Buen Retiro a Diez de Deciembre de mil setecientos Sesenta y dos.
Firmado = YO EL REY.
Y mas abajo = RICARDO WALL.
endorsed: Definitive Treaty, and Three Separate Articles, between His Majesty, the Most Christian King, and the Catholick King. dated Paris February 10th 1763.
The definitive Treaty of Peace and Friendship between his Britannick Majesty, the Most Christian King, and the King of Spain. Concluded at Paris the 10th day of February, 1763. To which the King of Portugal acceded on the same day. (Printed from the Copy.)
In the Name of the Most Holy and Undivided Trinity, Father, Son, and Holy Ghost. So be it.
Be it known to all those whom it shall, or may, in any manner, belong,
It has pleased the Most High to diffuse the spirit of union and concord among the Princes, whose divisions had spread troubles in the four parts of the world, and to inspire them with the inclination to cause the comforts of peace to succeed to the misfortunes of a long and bloody war, which having arisen between England and France during the reign of the Most Serene and Most Potent Prince, George the Second, by the grace of God, King of Great Britain, of glorious memory, continued under the reign of the Most Serene and Most Potent Prince, George the Third, his successor, and, in its progress, communicated itself to Spain and Portugal: Consequently, the Most Serene and Most Potent Prince, George the Third, by the grace of God, King of Great Britain, France, and Ireland, Duke of Brunswick and Lunenbourg, Arch Treasurer and Elector of the Holy Roman Empire; the Most Serene and Most Potent Prince, Lewis the Fifteenth, by the grace of God, Most Christian King; and the Most Serene and Most Potent Prince, Charles the Third, by the grace of God, King of Spain and of the Indies, after having laid the foundations of peace in the preliminaries signed at Fontainebleau the third of November last; and the Most Serene and Most Potent Prince, Don Joseph the First, by the grace of God, King of Portugal and of the Algarves, after having acceded thereto, determined to compleat, without delay, this great and important work. For this purpose, the high contracting parties have named and appointed their respective Ambassadors Extraordinary and Ministers Plenipotentiary, viz. his Sacred Majesty the King of Great Britain, the Most Illustrious and Most Excellent Lord, John Duke and Earl of Bedford, Marquis of Tavistock, &c. his Minister of State, Lieutenant General of his Armies, Keeper of his Privy Seal, Knight of the Most Noble Order of the Garter, and his Ambassador Extraordinary and Minister Plenipotentiary to his Most Christian Majesty; his Sacred Majesty the Most Christian King, the Most Illustrious and Most Excellent Lord, Cæsar Gabriel de Choiseul, Duke of Praslin, Peer of France, Knight of his Orders, Lieutenant General of his Armies and of the province of Britanny, Counsellor of all his Counsils, and Minister and Secretary of State, and of his Commands and Finances: his Sacred Majesty the Catholick King, the
Most Illustrious and Most Excellent Lord, Don Jerome Grimaldi, Marquis de Grimaldi, Knight of the Most Christian King's Orders, Gentleman of his Catholick Majesty's Bedchamber in Employment, and his Ambassador Extraordinary to his Most Christian Majesty; his Sacred Majesty the Most Faithful King, the Most Illustrious and Most Excellent Lord, Martin de Mello and Castro, Knight professed of the Order of Christ, of his Most Faithful Majesty's Council, and his Ambassador and Minister Plenipotentiary to his Most Christian Majesty.
Who, after having duly communicated to each other their full powers, in good form, copies whereof are transcribed at the end of the present treaty of peace, have agreed upon the articles, the tenor of which is as follows:
Article I. There shall be a Christian, universal, and perpetual peace, as well by sea as by land, and a sincere and constant friendship shall be re established between their Britannick, Most Christian, Catholick, and Most Faithful Majesties, and between their heirs and successors, kingdoms, dominions, provinces, countries, subjects, and vassals, of what quality or condition soever they be, without exception of places or of persons: So that the high contracting parties shall give the greatest attention to maintain between themselves and their said dominions and subjects this reciprocal friendship and correspondence, without permitting, on either side, any kind of hostilities, by sea or by land, to be committed from henceforth, for any cause, or under any pretence whatsoever, and every thing shall be carefully avoided which might hereafter prejudice the union happily reestablished, applying themselves, on the contrary, on every occasion, to procure for each other whatever may contribute to their mutual glory, interests, and advantages, without giving any assistance or protection, directly or indirectly, to those who would cause any prejudice to either of the high contracting parties: there shall be a general oblivion of every thing that may have been done or committed before or since the commencement of the war which is just ended.
II. The treaties of Westphalia of 1648; those of Madrid between the Crowns of Great Britain and Spain of 1661, and 1670; the treaties of peace of Nimeguen of 1678, and 1679; of Ryswick of 1697; those of peace and of commerce of Utrecht of 1713; that of Baden of 1714; the treaty of the triple alliance of the Hague of 1717; that of the quadruple alliance of London of 1118; the treaty of peace of Vienna of 1738; the definitive treaty of Aix la Chapelle of 1748; and that of Madrid, between the Crowns of Great Britain and Spain of 1750: as well as the treaties between the Crowns of Spain and Portugal of the 13th of February, 1668; of the 6th of February, 1715; and of the 12th of February, 1761; and that of the 11th of April, 1713, between France and Portugal with the guaranties of Great Britain, serve as a basis and foundation to the peace, and to the present treaty: and for this purpose they are all renewed and confirmed in the best form, as well as all the general, which subsisted between the high contracting parties before the war, as if they were inserted here word for word, so that they are to be exactly observed, for the future, in their whole tenor, and religiously executed on all sides, in all their points, which shall not be derogated from by the present treaty, notwithstanding all that may have been stipulated to the contrary by any of the high contracting parties: and all the said parties declare, that they will not suffer any privilege, favour, or indulgence to subsist, contrary to the treaties above confirmed, except what shall have been agreed and stipulated by the present treaty.
III. All the prisoners made, on all sides, as well by land as by sea, and the hostages carried away or given during the war, and to this day, shall be restored, without ransom, six weeks, at least, to be computed from the day of the exchange of the ratification of the present treaty, each crown respectively paying the advances which shall have been made for the subsistance and maintenance of their prisoners by the Sovereign of the country where they shall have been detained, according to the attested receipts and estimates and other authentic vouchers which shall be furnished on one side and the other. And securities shall be reciprocally given for the payment of the debts which the prisoners shall have contracted in the countries where they have been detained until their entire liberty. And all the ships of war and merchant vessels Which shall have been taken since the expiration of the terms agreed upon for the cessation of hostilities by sea shall likewise be restored, bonâ fide, with all their crews and cargoes: and the execution of this article shall be proceeded upon immediately after the exchange of the ratifications of this treaty.
IV. His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadia in all its parts, and guaranties the whole of it, and with all its dependencies, to the King of Great Britain: Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts in the gulph and river of St. Lawrence, and in general, every thing that depends on the said countries, lands, islands, and coasts, with the sovereignty, property, possession, and all rights acquired by treaty, or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, lands, islands, places, coasts, and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King, and to the Crown of Great Britain, and that in the most ample manner and form, without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. His Britannick Majesty, on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to the subjects of his Britannick Majesty, and bring away their effects as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions: The term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty.
V. The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the island of Newfoundland, such as it is specified in the XIIIth article of the treaty of Utrecht; which article is renewed and confirmed by the present treaty, (except what relates to the island of Cape Breton, as well as to the other islands and coasts in the mouth and in the gulph of St. Lawrence:) And his Britannick Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the gulph of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said gulph of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton, out of the said gulph, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton; and the fishery on the coasts of Nova Scotia or Acadia, and every where else out of the said gulph, shall remain on the foot of former treaties.
VI. The King of Great Britain cedes the islands of St. Pierre and Macquelon, in full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen; and his said Most Christian Majesty engages not to fortify the said islands; to erect no buildings upon them but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police.
VII. In order to reestablish peace on solid and durable foundations, and to remove for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America; it is agreed, that, for the future, the confines between the dominions of his Britannick Majesty and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the river Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Pontchartrain to the sea; and for this purpose, the Most Christian King cedes in full right, and guaranties to his Britannick Majesty the river and port of the Mobile, and every thing which he possesses, or ought to possess, on the left side of the river Mississippi, except the town of New Orleans and the island in which it is situated, which shall remain to France, provided that the navigation of the river Mississippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and expressly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its mouth: It is farther stipulated, that the vessels belonging to the subjects of either nation shall not be stopped, visited, or subjected to the payment of any duty whatsoever. The stipulations inserted in the IVth article, in favour of the inhabitants of Canada shall also take place with regard to the inhabitants of the countries ceded by this article.
VIII. The King of Great Britain shall restore to France the islands of Guadeloupe, of Mariegalante, of Desirade, of Martinico, and of Belleisle; and the fortresses of these islands shall be restored in the same condition they were in when they were conquered by the British arms, provided that his Britannick Majesty's subjects, who shall have settled in the said islands, or those who shall have any commercial affairs to settle there or in other places restored to France by the present treaty, shall have liberty to sell their lands and their estates, to settle their affairs, to recover their debts, and to bring away their effects as well as their persons, on board vessels, which they shall be permitted to send to the said islands and other places restored as above, and which shall serve for this use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts or of criminal prosecutions: and for this purpose, the term of eighteen months is allowed to his Britannick Majesty's subjects, to be computed from the day of the exchange of the ratifications of the present treaty; but, as the liberty granted to his Britannick Majesty's subjects, to bring away their persons and their effects, in vessels of their nation, may be liable to abuses if precautions were not taken to prevent them; it has been expressly agreed between his Britannick Majesty and his Most Christian Majesty, that the number of English vessels which have leave to go to the said islands and places restored to France, shall be limited, as well as the number of tons of each one; that they shall go in ballast; shall set sail at a fixed time; and shall make one voyage only; all the effects belonging to the English being to be embarked at the same time. It has been farther agreed, that his Most Christian Majesty shall cause the necessary passports to be given to the said vessels; that, for the greater security, it shall be allowed to place two French clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said islands and places restored to France, and that the merchandize which shall be found therein shall be confiscated.
IX. The Most Christian King cedes and guaranties to his Britannick Majesty, in full right, the islands of Grenada, and the Grenadines, with the same stipulations in favour of the inhabitants of this colony, inserted in the IVth article for those of Canada: And the partition of the islands called neutral, is agreed and fixed, so that those of St. Vincent, Dominico, and Tobago, shall remain in full right to Great Britain, and that of St. Lucia shall be delivered to France, to enjoy the same likewise in full right, and the high contracting parties guaranty the partition so stipulated.
X. His Britannick Majesty shall restore to France the island of Goree in the condition it was in when conquered: and his Most Christian Majesty cedes, in full right, and guaranties to the King of Great Britain the river Senegal, with the forts and factories of St. Lewis, Podor, and Galam, and with all the rights and dependencies of the said river Senegal.
XI. In the East Indies Great Britain shall restore to France, in the condition they are now in, the different factories which that Crown possessed, as well as on the coast of Coromandel and Orixa as on that of Malabar, as also in Bengal, at the beginning of the year 1749. And his Most Christian Majesty renounces all pretension to the acquisitions which he has made on the coast of Coromandel and Orixa since the said beginning of the year 1749. His Most Christian Majesty shall restore, on his side, all that he may have conquered from Great Britain in the East Indies during the present war; and will expressly cause Nattal and Tapanoully, in the island of Sumatra, to be restored; he engages farther, not to erect fortifications, or to keep troops in any part of the dominions of the Subah of Bengal. And in order to preserve future peace on the coast of Coromandel and Orixa, the English and French shall acknowledge Mahomet Ally Khan for lawful Nabob of the Carnatick, and Salabat Jing for lawful Subah of the Decan; and both parties shall renounce all demands and pretensions of satisfaction with which they might charge each other, or their Indian allies, for the depredations or pillage committed on the one side or on the other during the war.
XII. The island of Minorca shall be restored to his Britannick Majesty, as well as Fort St. Philip, in the same condition they were in when conquered by the arms of the Most Christian King; and with the artillery which was there when the said island and the said fort were taken.
XIII. The town and port of Dunkirk shall be put into the state fixed by the last treaty of Aix la Chapelle, and by former treaties. The Cunette shall be destroyed immediately after the exchange of the ratifications of the present treaty, as well as the forts and batteries which defend the entrance on the side of the sea; and provision shall be made at the same time for the wholesomeness of the air, and for the health of the inhabitants, by some other means, to the satisfaction of the King of Great Britain.
XIV. France shall restore all the countries belonging to the Electorate of Hanover, to the Landgrave of Hesse, to the Duke of Brunswick, and to the Count of La Lippe Buckebourg, which are or shall be occupied by his Most Christian Majesty's arms: the fortresses of these different countries shall be restored in the same condition they were in when conquered by the French arms; and the pieces of artillery, which shall have been carried elsewhere, shall be replaced by the same number, of the same bore, weight and metal.
XV. In case the stipulations contained in the XIIIth article of the preliminaries should not be compleated at the time of the signature of the present treaty, as well with regard to the evacuations to be made by the armies of France of the fortresses of Cleves, Wezel, Guelders, and of all the countries belonging to the King of Prussia, as with regard to the evacuations to be made by the British and French armies of the countries which they occupy in Westphalia, Lower Saxony, on the Lower Rhine, the Upper Rhine, and in all the empire; and to the retreat of the troops into the dominions of their respective Sovereigns: their Britannick and Most Christian Majesties promise to proceed, bonâ fide, with all the dispatch the case will permit of to the said evacuations, the entire completion whereof they stipulate before the 15th of March next, or sooner if it can be done; and their Britannick and Most Christian Majesties farther engage and promise to each other, not to furnish any succours of any kind to their respective allies who shall continue engaged in the war in Germany.
XVI. The decision of the prizes made in time of peace by the subjects of Great Britain, on the Spaniards, shall be referred to the Courts of Justice of the Admiralty of Great Britain, conformably to the rules established among all nations, so that the validity of the said prizes, between the British and Spanish nations, shall be decided and judged, according to the law of nations, and according to treaties, in the Courts of Justice of the nation who shall have made the capture.
XVII. His Britannick Majesty shall cause to be demolished all the fortifications which his subjects shall have erected in the bay of Honduras, and other places of the territory of Spain in that part of the world, four months after the ratification of the present treaty; and his Catholick Majesty shall not permit his Britannick Majesty's subjects, or their workmen, to be disturbed or molested under any pretence whatsoever in the said places, in their occupation of cutting, loading, and carrying away logwood; and for this purpose, they may build, without hindrance, and occupy, without interruption, the houses and magazines necessary for them, for their families, and for their effects; and his Catholick Majesty assures to them, by this article, the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated, immediately after the ratification of the present treaty.
XVIII. His Catholick Majesty desists, as well for himself as for his successors, from all pretension which he may have formed in favour of the Guipuscoans, and other his subjects, to the right of fishing in the neighbourhood of the island of Newfoundland.
XIX. The King of Great Britain shall restore to Spain all the territory which he has conquered in the island of Cuba, with the fortress of the Havannah; and this fortress, as well as all the other fortresses of the said island, shall be restored in the same condition they were in when conquered by his Britannick Majesty's arms, provided that his Britannick Majesty's subjects who shall have settled in the said island, restored to Spain by the present treaty, or those who shall have any commercial affairs to settle there, shall have liberty to sell their lands and their estates, to settle their affairs, recover their debts, and to bring away their effects, as well as their persons, on board vessels which they shall be permitted to send to the said island restored as above, and which shall serve for that use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts or of criminal prosecutions: And for this purpose, the term of eighteen months is allowed to his Britannick Majesty's subjects, to be computed from the day of the exchange of the ratifications of the present treaty: but as the liberty granted to his Britannick Majesty's subjects, to bring away their persons and their effects, in vessels of their nation, may be liable to abuses if precautions were not taken to prevent them; it has been expressly agreed between his Britannick Majesty and his Catholick Majesty, that the number of English vessels which shall have leave to go to the said island restored to Spain shall be limited, as well as the number of tons of each one; that they shall go in ballast; shall set sail at a fixed time; and shall make one voyage only; all the effects belonging to the English being to be embarked at the same time: it has been farther agreed, that his Catholick Majesty shall cause the necessary passports to be given to the said vessels; that for the greater security, it shall be allowed to place two Spanish clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said island restored to Spain, and that the merchandize which shall be found therein shall be confiscated.
XX. In consequence of the restitution stipulated in the preceding article, his Catholick Majesty cedes and guaranties, in full right, to his Britannick Majesty, Florida, with Fort St. Augustin, and the Bay of Pensacola, as well as all that Spain possesses on the continent of North America, to the East or to the South East of the river Mississippi. And, in general, every thing that depends on the said countries and lands, with the sovereignty, property, possession, and all rights, acquired by treaties or otherwise, which the Catholick King and the Crown of Spain have had till now over the said countries, lands, places, and their inhabitants; so that the Catholick King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample manner and form. His Britannick Majesty agrees, on his side, to grant to the inhabitants of the countries above ceded, the liberty of the Catholick religion; he will, consequently, give the most express and the most effectual orders that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the Spanish inhabitants, or others who had been subjects of the Catholick King in the said countries, may retire, with all safety and freedom, wherever they think proper; and may sell their estates, provided it be to his Britannick Majesty's subjects, and bring away their effects, as well as their persons.
without being restrained in their emigration, under any pretence whatsoever, except that of debts, or of criminal prosecutions: the term limited for this emigration being fixed to the space of eighteen months, to be computed from the day of the exchange of the ratifications of the present treaty. It is moreover stipulated, that his Catholick Majesty shall have power to cause all the effects that may belong to him, to be brought away, whether it be artillery or other things.
XXI. The French and Spanish troops shall evacuate all the territories, lands, towns, places, and castles, of his Most faithful Majesty in Europe, without any reserve, which shall have been conquered by the armies of France and Spain, and shall restore them in the same condition they were in when conquered, with the same artillery and ammunition, which were found there: And with regard to the Portuguese Colonies in America, Africa, or in the East Indies, if any change shall have happened there, all things shall be restored on the same footing they were in, and conformably to the preceding treaties which subsisted between the Courts of France, Spain, and Portugal, before the present war.
XXII. All the papers, letters, documents, and archives, which were found in the countries, territories, towns and places that are restored, and those belonging to the countries ceded, shall be, respectively and bonâ fide, delivered, or furnished at the same time, if possible, that possession is taken, or, at latest, four months after the exchange of the ratifications of the present treaty, in whatever places the said papers or documents may be found.
XXIII. All the countries and territories, which may have been conquered, in whatsoever part of the world, by the arms of their Britannick and Most Faithful Majesties, as well as by those of their Most Christian and Catholick Majesties, which are not included in the present treaty, either under the title of cessions, or under the title of restitutions, shall be restored without difficulty, and without requiring any compensations.
XXIV. As it is necessary to assign a fixed epoch for the restitutions and the evacuations, to be made by each of the high contracting parties, it is agreed, that the British and French troops shall compleat, before the 15th of March next, all that shall remain to be executed of the XIIth and XIIIth articles of the preliminaries, signed the 3d day of November last, with regard to the evacuation to be made in the Empire, or elsewhere. The island of Belleisle shall be evacuated six weeks after the exchange of the ratifications of the present treaty, or sooner if it can be done. Guadeloupe, Desirade, Mariegalante Martinico, and St. Lucia, three months after the exchange of the ratifications of the present treaty, or sooner if it can be done. Great Britain shall likewise, at the end of three months after the exchange of the ratifications of the present treaty, or sooner if it can be done, enter into possession of the river and port of the Mobile, and of all that is to form the limits of the territory of Great Britain, on the side of the river Mississippi, as they are specified in the VIIth article. The island of Goree shall be evacuated by Great Britain, three months after the exchange of the ratifications of the present treaty; and the island of Minorca by France, at the same epoch, or sooner if it can be done: And according to the conditions of the VIth article, France shall likewise enter into possession of the islands of St Peter, and of Miquelon, at the end of three months after the exchange of the ratifications of the present treaty. The Factories in the East Indies shall be restored six months after the exchange of the ratifications of the present treaty, or sooner if it can be done. The fortress of the Havannah, with all that has been conquered in the island of Cuba, shall be restored three months after the exchange of the ratifications of the present treaty, or sooner if it can be done: And, at the same time, Great Britain shall enter into possession of the country ceded by Spain according to the XXth article. All the places and countries of his most Faithful Majesty, in Europe, shall be restored immediately after the exchange of the ratification of the present treaty: And the Portuguese colonies, which may have been conquered, shall be restored in the space of three months in the West Indies, and of six months in the East Indies, after the exchange of the ratifications of the present treaty, or sooner if it can be done. All the fortresses, the restitution whereof is stipulated above, shall be restored with the artillery and ammunition, which were found there at the time of the conquest. In consequence whereof, the necessary orders shall be sent by each of the high contracting parties, with reciprocal passports for the ships that shall carry them, immediately after the exchange of the ratifications of the present treaty.
XXV. His Britannick Majesty, as Elector of Brunswick Lunenbourg, as well for himself as for his heirs and successors, and all the dominions and possessions of his said Majesty in Germany, are included and guarantied by the present treaty of peace.
XXVI. Their sacred Britannick, Most Christian, Catholick, and Most Faithful Majesties, promise to observe sincerely and bonâ fide, all the articles contained and settled in the present treaty; and they will not suffer the same to be infringed, directly or indirectly, by their respective subjects; and the said high contracting parties, generally and reciprocally, guaranty to each other all the stipulations of the present treaty.
XXVII. The solemn ratifications of the present treaty, expedited in good and due form, shall be exchanged in this city of Paris, between the high contracting parties, in the space of a month, or sooner if possible, to be computed from the day of the signature of the present treaty.
In witness whereof, we the underwritten their Ambassadors Extraordinary, and Ministers Plenipotentiary, have signed with our hand, in their name, and in virtue of our full powers, have signed the present definitive treaty, and have caused the seal of our arms to be put thereto. Done at Paris the tenth day of February, 1763.
Bedford, C.P.S. Choiseul, Duc de Praslin. El Marq. de Grimaldi.
(L.S.) (L.S.) (LS )
I. Some of the titles made use of by the contracting powers, either in the full powers, and other acts, during the course of the negociation, or in the preamble of the present treaty, not being generally acknowledged; it has been agreed, that no prejudice shall ever result therefrom to any of the said contracting parties, and that the titles, taken or omitted on either side, on occasion of the said negociation, and of the present treaty, shall not be cited or quoted as a precedent.
II. It has been agreed and determined, that the French language made use of in all the copies of the present treaty, shall not become an example which may be alledged, or made a precedent of, or prejudice, in any manner, any of the contracting powers; and that they shall conform themselves, for the future, to what has been observed, and ought to be observed, with regard to, and on the part of powers, who are used, and have a right, to give and to receive copies of like treaties in another language than French; the present treaty having still the same force and effect, as if the aforesaid custom had been therein observed.
III. Though the King of Portugal has not signed the present definitive treaty, their Britannick, Most Christian, and Catholick Majesties, acknowledge, nevertheless, that his Most Faithful Majesty is formally included therein as a contracting party, and as if he had expressly signed the said treaty: Consequently, their Britannick, Most Christian, and Catholick Majesties, respectively and conjointly, promise to his Most Faithful Majesty, in the most express and most binding manner, the execution of all and every the clauses, contained in the said treaty, on his act of accession.
The present Separate Articles shall have the same force as if they were inserted in the treaty.
In witness whereof, We the underwritten Ambassadors Extraordinary, and Ministers Plenipotentiary of their Britannick, Most Christian and Catholick Majesties, have signed the present separate Articles, and have caused the seal of our arms to be put thereto.
Done at Paris, the 10th of February, 1763.
Bedford, C.P.S. Choiseul, Duc El Marq. de
(L.S.) de Praslin. Grimaldi.
His Britannick Majesty's full Power.
GEORGE the Third, by the grace of God, King of Great Britain, France and Ireland, Defender of the Faith, Duke of Brunswick and Lunenbourg, ArchTreasurer, and Prince Elector of the Holy Roman Empire, &c. To all and singular to whom these presents shall come, greeting. Whereas, in order to perfect the peace between Us and our good Brother the Most Faithful King, on the one part, and our good Brothers the Most Christian and Catholick Kings, on the other, which has been happily begun by the Preliminary Articles already signed at Fontainebleau the third of this month; and to bring the same to the desired end, We have thought proper to invest some fit person with full authority, on our part; Know ye, that We, having most entire confidence in the fidelity, judgment, skill, and ability in managing affairs of the greatest consequence, of our right trusty, and right entirely beloved Cousin and Counsellor, John Duke and Earl of Bedford, Marquis of Tavistock, Baron Russel of Cheneys, Baron Russel of Thornhaugh, and Baron Howland of Streatham, Lieutenantgeneral of our forces, Keeper of our Privy Seal, Lieutenant and Custos Rotulorum of the counties of Bedford and Devon, Knight of our most noble order of the Garter, and our Ambassador Extraordinary and Plenipotentiary to our good Brother the Most Christian King, have nominated, made, constituted and appointed, as by these presents, we do nominate, make, constitute, and appoint him, our true, certain, and undoubted Minister, Commissary, Deputy, Procurator and Plenipotentiary, giving to him all and all manner of power, faculty and authority, as well as our general and special command (yet so as that the general do not derogate from the special, or on the contrary) for Us and in our name, to meet and confer, as well singly and separately, as jointly, and in a body, with the Ambassadors, Commissaries, Deputies, and Plenipotentiaries of the Princes, whom it may concern, vested with sufficient power and authority for that purpose, and with them to agree upon, treat, consult and conclude, concerning the reestablishing, as soon as may be, a firm and lasting peace, and sincere friendship and concord; and whatever shall be so agreed and concluded, for Us and in our name, to sign, and to make a treaty or treaties, on what shall have been so agreed and concluded, and to transact every thing else that may belong to the happy completion of the aforesaid work, in as ample a manner and form, and with the same force and effect, as We ourselves, if we were present, could do and perform; engaging and promising, on our royal word, that We will approve, ratify and accept, in the best manner, whatever shall happen to be transacted and concluded by our said Plenipotentiary, and that We will never suffer any person to infringe or act contrary to the same, either in the whole or in part. In witness and confirmation whereof We have caused our great Seal of Great Britain to be affixed to these presents, signed with our royal hand. Given at our Palace at St. James's, the 12th day of November, 1762, in the third year of our reign.
His Most Christian Majesty's Full Power.
LEWIS, by the grace of God, King of France and Navarre, To all who shall see these presents, Greeting. Whereas the Preliminaries, signed at Fontainebleau the third of November of the last year, laid the foundation of the peace reestablished between us and our most dear and most beloved good Brother and Cousin the King of Spain, on the one part, and our most dear and most beloved good Brother the King of Great Britain, and our most dear and most beloved good Brother and Cousin the King of Portugal on the other, We have had nothing more at heart since that happy epoch, than to consolidate and strengthen in the most lasting manner, so salutary and so important a work, by a solemn and definitive treaty between Us and the said powers. For these causes, and other good considerations, Us thereunto moving, We, trusting entirely in the capacity and experience, zeal and fidelity for our service, of our most dear and wellbeloved Cousin, Cæsar Gabriel de Choiseul, Duke of Praslin, Peer of France, Knight of our Orders, Lieutenant General of our Forces and of the province of Britany, Counsellor in all our Councils, Minister and Secretary of State, and of our Commands and Finances, We have named, appointed, and deputed him, and by these presents, signed with our hand, do name, appoint, and depute him our Minister Plenipotentiary, giving him full and absolute power to act in that quality, and to confer, negociate, treat and agree jointly with the Minister Plenipotentiary of our most dear and most beloved good Brother the King of Great Britain, the Minister Plenipotentiary of our most dear and most beloved good Brother and Cousin the King of Spain and the Minister Plenipotentiary of our most dear and most beloved good Brother and Cousin the King of Portugal, vested with full powers, in good form, to agree, conclude and sign such articles, conditions, conventions, declarations, definitive treaty, accessions, and other acts whatsoever, that he shall judge proper for securing and strengthening the great work of peace, the whole with the same latitude and authority that We ourselves might do, if We were there in person, even though there should be something which might require a more special order than what is contained in these presents, promising on the faith and word of a King, to approve, keep firm and stable for ever, to fulfil and execute punctually, all that our said Cousin, the Duke of Praslin, shall have stipulated, promised and signed, in virtue of the present full power, without ever acting contrary thereto, or permitting any thing contrary thereto, for any cause, or under any pretence whatsoever, as also to cause our letters of ratification to be expedited in good form, and to cause them to be delivered, in order to be exchanged within the time that shall be agreed upon. For such is our pleasure. In witness whereof, we have caused our Seal to be put to these presents. Given at Versailles the 7th day of the month of February, in the year of Grace 1763, and of our reign the fortyeighth. Signed Lewis, and on the fold, by the King, the Duke of Choiseul. Sealed with the great Seal of yellow Wax.
His Catholick Majesty's full Power.
DON CARLOS, by the grace of God, King of Castille, of Leon, of Arragon, of the two Sicilies, of Jerusalem, of Navarre, of Granada, of Toledo, of Valencia, of Galicia, of Majorca, of Seville, of Sardinia, of Cordova, of Corsica, of Murcia, of Jaen, of the Algarves. of Algecira. of Gibraltar. of the Canary Islands, of the East and West Indies, Islands and Continent, of the Ocean, Arch Duke of Austria, Duke of Burgundy, of Brabant and Milan, Count of Hapsburg, of Flanders, of Tirol and Barcelona, Lord of Biscay and of Molino, &c. Whereas preliminaries of a solid and lasting peace between this Crown, and that of France on the one part, and that of England and Portugal on the other, were concluded and signed in the Royal Residence of Fontainbleau, the 3rd of November of the present year, and the respective ratifications thereof exchanged on the 22d of the same month, by Ministers authorised for that purpose, wherein it is promised, that a definitive treaty should be forthwith entered upon, having established and regulated the chief points upon which it is to turn: and whereas in the same manner as I granted to you, Don Jerome Grimaldi, Marquis de Grimaldi, Knight of the Order of the Holy Ghost, Gentleman of my Bedchamber with employment, and my Ambassador Extraordinary to the Most Christian King, my full power to treat, adjust, and sign the beforementioned preliminaries, it is necessary to grant the same to you, or to some other, to treat, adjust, and sign the promised definitive treaty of peace as aforesaid: therefore, as you the said Don Jerome Grimaldi, Marquis de Grimaldi, are at the convenient place, and as I have every day fresh motives, from your approved fidelity and zeal, capacity and prudence, to entrust to you this, and otherlike concerns of my Crown, I have appointed you my Minister Plenipotentiary, and granted to you my full power, to the end, that, in my name, and representing my person, you may treat, regulate, settle, and sign the said definitive treaty of peace between my Crown and that of France on the one part, that of England and that of Portugal on the other, with the Ministers who shall be equally and specially authorised by their respective Sovereigns for the same purpose; acknowledging, as I do from this time acknowledge, as accepted and ratified, whatever you shall so treat, conclude, and sign; promising, on my Royal Word, that I will observe and fulfil the same, will cause it to be observed and fulfilled, as if it had been treated, concluded, and signed by myself. In witness whereof, I have caused these presents to be dispatched, signed by my hand, sealed with my privy seal, and countersigned by my underwritten Counsellor of State, and first Secretary for the department of State and of War. Buen Retiro, the 10th day of December, 1762.
(Signed) I THE KING.
(And lower) Richard Wall
The English version of the Treaty of 1763 is taken from the Collection of Treaties compiled by the Hon. Charles Jenkinson, afterwards Lord Liverpool, and which appeared under the following title:--"A Collection of all the Treaties of Peace, Alliance, and Commerce, Between GreatBritain and other Powers. From the Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783. By the Right Hon. Charles Jenkinson. In three Volumes." The Treaty of 1763 is contained in Vol. III, pp. 177197.
This was taken directly from a wonderful collection of documents compiled by Adam Shortt and Arthur G. Doughty, eds. Documents Relating to the Constitutional History of Canada, 2nd. rev. ed. 1759-1791 (Ottawa: Public Archives of Canada (King's Printer), 1918). Recommended. [ I don't like to editorialize, but I feel that this is at least important to state: An important reference work like this that is made available for the public is not an open invitation to vanadalize it. The copy I had was full of scrawlings penciled in everywhere and even had its reproduced map of New France as it was in 1759 nearly torn out. Works like these should be treated with respect and saved, not like a dime-store notepad you throw away with your failed school paper on law. -Ed. ]
Last HTML revision: 27 April, 1997.William F. Maton
X.x Spanish Origin of Indian Rights (1942).
THE SPANISH ORIGIN OF
INDIAN RIGHTS IN THE
LAW OF THE UNITED STATES
by Felix S. Cohen(1)
The Georgetown Law
Vol. 31, pp. 1-21 (1942)
TO TRACE the origins of our Federal Indian law is a difficult task. The law of the United States with respect to Indian tribes is a curious historical patchwork in which may be found the product of many looms and many weavers. One may divide this strange patchwork into its component patches and find nearly four hundred federal treaties with Indian tribes, about four thousand federal statutes, and an even larger number of judicial and administrative decisions which, by and large, attempt to interpret and to apply these treaties and statutes. The fact that there are Spanish threads in this patchwork is of no greater significance than the fact that some of the finest of our old Navajo Indian rugs contain red threads (bayeta) that were secured by unraveling the red woolen underwear of Spanish soldiers. What is really important, after all, about the Spaniards and the Navajo rugs is that the Spaniards (largely through the intermediary of the Pueblo Indians) introduced into the country of the Navajos the sheep and the wool of which Navajo rugs are made, and introduced into the life of the Navajos the ways of the sheepherder and weaver, which supplanted ways of the raider and hunter. These were the real Spanish contributions to the Navajo rug.
So it is with our law. We should have a poor idea of the Spanish influence upon our Federal Indian law if we divided that tapestry and noted which patches and threads were of Spanish origin. For then we should lose the pattern and the creative principles of this law, and it is this pattern and these creative principles that are the distinctive contribution of Spanish juristic thought to our Federal Indian law. This is not merely a fact of antiquarian interest. It is a fact of some importance to the world [*p 2] of today and tomorrow. If our law of Indian affairs were the result of a purely local adaptation of Anglo-American common law, or a pure product of independent national legislation, we might not expect it to have much relevance to the problems of inter-racial and inter-cultural relations in other parts of the world. But if, on the other hand, the spirit of this law and its creative principles came to us across wide waters, and across wider gulfs of polity, religion, and culture, there must be in this spirit and these principles something that is not merely local and particular, something that is universal and enduring, something that can be carried to other lands across wide waters and wider gulfs of polity, religion and culture. Such is the significance of what might otherwise be an interesting but unimportant problem for legal antiquarians.
Today, more than ever before, we need to study the legal relations that have served to bind together in common cause and common effort peoples of different races, different creeds, different social structures, and different ways of life. In such a study we cannot afford to overlook the relations of the United States to the Indian tribes within our territory. The comparatively small number of Indians involved does not diminish the importance of such studies. The fact is that there is probably no dependent people in any part of the world which has rallied to the support of democracy with more devotion than the tribal Indians of the United States have shown in the present crisis. In the rate of volunteering for the armed services they have far surpassed the white or black populations of the United States. In the proportion of their funds which they have voluntarily placed at the disposal of the Federal Government, through subscription to war bonds or otherwise, they have again far surpassed the rest of the country. They have given not only of blood and sweat and tears but of brains as well. Descendants of great Indian strategists have earned important positions in our armed forces. It was to a member of the Osage Tribe, Major General Tinker, that the all important job of rebuilding the air forces in Hawaii was entrusted after Pearl Harbor, and he more than any one else deserves credit for our air victory in the Battle of Midway, where he himself lost his life. Had the United Nations found as staunch defenders in the peoples of Egypt, Indo-China, the East Indies, Malaya or Burma, what pen could rewrite the history of the last few years?
It may be doubted whether our tribal Indians are to be distinguished in physical strength or courage or health or pugnacity or intelligence from native populations in some other parts of the world that have not rallied to the support of their governments in time of stress. At least the hypothesis is worth examining that what has distinguished our tribal Indians from these other native populations lies on a legal plane, that it is, in essence, a relation to government capable of evoking loyalty, and that in [*p 3] other parts of the world, where a similar relationship between peoples exists, as in the Philippines, a similar loyalty is likely to appear.
What is the nature of this legal pattern that has so dramatically shown its capacity to evoke loyalty?
II. The Pattern of Federal Indian Law
Let us be clear, in the first place, about the object of our search. We are to trace the history of certain social ideals, ideals which have seldom corresponded exactly to the realities of living but which have been close enough to reality to attain the force of law. We are to look for origins of pattern, spirit, principle, that bind together thousands of statutes and decisions. To do that we must first reduce the maze of our Indian law to a manageable scheme and take account of its basic principles. That is no easy task, but the most comprehensive effort thus far made in this direction has traced the manifold detail of existing Federal Indian law to four basic principles:
(1) The principle of the legal equality of races; (2) the principle of tribal self-government; (3) the principle of Federal sovereignty in Indian affairs; and (4) the principle of governmental protection of Indians.(2)
A brief examination into the legal content of these principles must suffice for our present purposes.
1. Legal Equality. The legal status of tribal Indians, although different from, is not inferior to, that of their white countrymen. Today all Indians born in the United States are citizens of the United States.(3) As citizens they are entitled to the rights of suffrage guaranteed by the Fifteenth Amendment to the Federal Constitution,(4) and they are likewise entitled to hold public office. The process of conferring citizenship upon Indians has been a slow process. It began with a ringing declaration in [*p 4] 1776 "that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The process reached its conclusion only in 1924, when the last non-citizen Indians gained citizenship. But throughout the years when many or most Indians were non-citizens, their legal status as human beings was not subordinated to that of their white countrymen. Their lives and property were held to be entitled to legal protection against violence. When the United States Army attempted to exercise military control over a group of peaceful Indians who refused to remain on the reservation assigned to them, the Indians were freed from army control by the issuance of a writ of habeas corpus.(5) Indians were recognized as having legal capacity to sue,(6) to make contracts,(7) to hold public office,(8) and to enjoy all the civil liberties guaranteed to their white neighbors, citizen or alien.(9) Their legal status was, and is, peculiar only because they are members of special political bodies, tribes, which largely take the place that states and municipalities occupy towards other citizens of the United States. The political conception of the tribe is thus the origin of whatever is distinctive about the legal position of the Indian in the law of the United States.
2. Tribal Self-Government. The principle that an Indian tribe is a political body with powers of self-government was first clearly enunciated in the jurisprudence of the United States by Chief Justice Marshall in the case of Worcester v. Georgia.(10) Indian tribes or nations, he declared,
"... had always been considered as distinct, independent, political communities, retaining their original natural rights, . . ."
To this situation was applied the accepted rule of international law:
". . . the settled doctrine of the law of nations is, that a weaker power does not surrender its independence -- its right to self-government -- by associating with a stronger, and taking its protection."
From these premises Chief Justice Marshall concluded that the State of Georgia had no right to interfere with the laws and territory of the Cherokee Tribe. Following this decision, the federal courts have held [*p 5] that Indian tribes have all the powers of self-government of any sovereignty except in so far as those powers have been modified or repealed by act of Congress or by treaty.(11) Hence over large fields of criminal and civil law, and particularly over questions of tribal membership, inheritance, tribal taxation, tribal property, domestic relations, and the form of tribal government, the laws, customs, and decisions of the proper tribal governing authorities have, to this day, the force of law.
3. Federal Sovereignty. At the present time it may be laid down as a rough general rule that Indians on an Indian reservation are not subject to the local law of the state in which they reside.(12) This exemption is of particular importance in the fields of criminal law and taxation. The general rule has been modified only in a few particulars by congressional action conferring upon states specific powers over certain subjects.(13)
The fact that Indian tribes are largely exempt from the operations of the local laws of the forty-eight states and their political subdivisions derives from the fact that the Constitution of the United States vests in the national government rather than in the states the three powers upon which our law of Indian affairs is primarily based -- the war-making power, the treaty-making power, and the power to regulate commerce with Indian tribes. In practice, this centralization of federal sovereignty over Indian affairs has proved a powerful weapon against oppression. Again and again the federal courts have intervened to restrain the attempts of local authorities to infringe upon Indian rights.(14) As the Supreme Court of the United States once said:
"These Indian tribes are the wards of the nation . . . . They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies."(15)
The functional significance of this principle of federal sovereignty over Indian affairs lies in the fact that Indians, in conflicts of interest with non-[*p 6]Indian neighbors, have been able to call upon the Federal Government to aid in the protection of Indian rights.(16)
4. Federal Protection of Indians. Intercourse between people of widely disparate cultural levels inevitably affords opportunities for exploitation, oppression, and debauchery. The first white traders in America offered the natives new weapons, new drinks, and new tools, all of which were capable of destroying native life, health, and culture. In exchange for these deadly but apparently irresistible gifts, the whites were able to demand surrender of the land from which the Indian drew his sustenance. Warped, poisoned, and armed with deadly weapons, the displaced tribe would be pushed on to the lands of another tribe to spread the seeds of destruction. This was the basic pattern; local bounties for native scalps and the sale to Indians of blankets infected with small-pox were obscene and unnecessary embellishments.(17)
The problem facing our central government from the start was how to stop, or at least minimize, this process of exploitation and extermination. The answer chosen was the imposition of a rigid control over all intercourse between its own subjects and the native population. This control, designed to protect the Indian without absolutely forbidding intercourse between the two races, has been the guiding motif of federal legislation on Indian affairs down to the present date.
In 1790 the first Federal Congress adopted the policy of regulating trade with the Indians through a system of licensing traders.(18) Except for a brief period, from 1796 to 1822, when a system of Government trading houses was maintained,(19) the principle of control of Indian trade through licenses has been in force. Under this system federal supervision of the character and quality of goods sold and prices charged has been [*p 7] possible. Sales of liquor, and of firearms and ammunition not needed for useful purposes, have been banned.
The most important subject of trade between Indians and whites was inevitably the land which the Indians possessed and which the white immigrants needed. It was about trade in land that the most stringent restrictions have been placed by the Federal Government. For many decades transfers of Indian land could not be made by private transaction but required for their validity a formal treaty between the Indian tribe and the United States.(20) Down to the present day tribal land may not be sold except by a special act of Congress. Where, however, Indian lands have been individualized, general legislation permits the sale of the individual allotments under conditions designed to safeguard the interest of the Indian vendor.(21) Generally, such safeguards include either the requirement that the Indian vendor must hold the land for a fixed period of time, usually 25 years, before receiving a "fee patent" entitling him to sell the land, or a requirement that the particular transaction should be approved by the Secretary of the Interior.
The leasing of Indian lands for short periods has been allowed in recent years, but only under conditions designed to protect the Indian lessors. In most Indian leases, whether tribal or individual, the approval of the Secretary of the Interior or of some subordinate officer is required.
By maintaining its control over the transactions by which Indians dispose of land, the Federal Government has been able to establish a large degree of control over the income received by the Indians from such disposition. Sale or leasing of land has been a major source of income for most Indian tribes, and control of this income has permitted the Federal Government to direct a considerable portion of the Indian income into educational, health, and other public services for Indians. A substantial part of our Federal Indian law today is concerned with the Federal disposition of Indian moneys.
The principle of federal protection of Indian rights has proved to be of special importance in the maintenance of Indian land rights. By treaty and by statute the United States undertook to protect the Indian tribes in their possession of vast areas of land. It is true that this Indian possession was not considered a perfect title, and in the cases it is commonly said that legal title to such lands is in the United States, with a right of use and occupancy in the Indians. But these are subtleties of feudal legal theory which meant nothing to the Indians. Our courts have repeatedly said that the Indian right of occupancy and use is as sacred as [*p 8] the fee title,(22) and it is certainly more substantial than the naked legal title which legal theory locates in the Federal Government. Indeed, it may be said that lands held by "Indian title" are worth more to the Indian holders than are lands held in fee simple; for lands of the former sort are exempt from state taxation and from execution under the process of state courts, these being two channels through which much individually owned Indian land has slipped out of Indian hands.
It is important to realize that what the Federal Government undertook to protect was not only the welfare of the Indians -- a slippery phrase which might have been twisted to justify a governmental oppression worse than that of private oppressors(23) -- but the rights of the Indians. Such rights included rights of personalty, rights of self-government, and rights of property. Of the Indian's rights of personalty and self-government we have already briefly spoken. Of the Indian property rights, the most important was the right of the tribe to land occupied from time immemorial. This right federal jurisprudence has consistently recognized.
The most recent instance of such recognition may be found in the opinion of the United States Supreme Court in, the case of the Walapai Tribe.(24) In that case a railroad claimed certain lands in northern Arizona under a Congressional land grant made in 1866 in aid of railroad construction.(25) These lands were claimed by the Walapai Tribe as part of its ancestral homeland. The Supreme Court, reversing the decision of two lower courts, held that the railroad was not entitled to any land which had been occupied by the Walapai Tribe before the grant to the railroad and had not been voluntarily relinquished by the Indians. Thus was reaffirmed the principle laid down by Chief Justice Marshall more than a century ago(26) that the Indian tribes have a full and complete legal right to lands which they have continuously and exclusively occupied, and that this right will be protected by the federal courts against any interference by private parties or by unauthorized public officials.
The validity of Indian possessory rights has been upheld by the Supreme Court even against the statutory protector of the Indian, the Secretary of the Interior, in days when that officer proved less solicitous for the rights of the Indian than is the present incumbent of that position. [*p 9] Thus, in the case of Lane v. Pueblo of Santa Rosa,(27) the Supreme Court held that a group of Papago Indians had legal capacity to bring suit against the Secretary of the Interior to prevent that officer from disposing of Indian lands under laws relating to the public lands. Likewise, in 1924, when the later notorious Secretary of the Interior Albert Fall sought to dispose of minerals in certain Indian lands without Indian consent, Attorney General Stone (now Chief Justice of the United States) issued an opinion holding that the Secretary of the Interior had no right to dispose of such minerals in the manner proposed, for the reason that the minerals in question belonged to the Indians, whose property rights were "complete and exclusive."(28)
The foregoing examples, while they are very far from giving the full content of the principle of federal protection of Indians, show at least the direction in which that principle has guided the development of our law and the intimate inter-dependence of this protective principle and the companion principles of the political equality of races, the right of tribal self-government, and the doctrine of Federal sovereignty in Indian affairs.
III. The Pattern of Spanish Indian Law
In the Anglo-American literary and historical tradition the Spaniards' treatment of the Indian has been so long held up to view as a pattern of cruelty and treachery that it may be considered heretical to argue at this late date that the humane principles which guide our own law in Indian affairs all faithfully follow the teachings of Spanish theologians and the edicts of Spanish kings. And yet this thesis will not sound so startling once we recognize that although the behavior of our own citizens and officials towards the Indians has frequently been marked by acts of cruelty and treachery, it is by our own courts and laws that these acts of cruelty and treachery have been denounced, the perpetrators of these acts punished, and the victims of these acts, or their descendants, recompensed in the only kind of measure that human compensation for such acts can follow.(29) So it was with Spain. It would be childish to gloss over the inhumane aspects of the Spanish conquest of the New World. Yet there is an important difference between these aspects of the treatment of Indians in the New World in the fifteenth and sixteenth centuries and what Nazis have done in the Old World in the twentieth. Against the cruelties of the Spanish invaders the clear voice of protest was raised by [*p 10] loyal Spaniards and faithful Catholics to the King of Spain and to the Pope himself,(30) and both King and Pope repeatedly denounced the acts [*p 11] of oppression committed by brigands that brooked no trans-oceanic control. So it is that while the acts of cruelty and treachery of lawless men wrought a havoc that eventually brought Spanish rule in the New World to an end, the legal ideals which Spanish teachers proclaimed, and which Crown and Holy See ratified, provided a humane and rational basis for an American law of Indian affairs.
(1) Legal Equality. Of the first principle of our own Indian law, the equality of races, the works of the Spanish theologian and jurist, Francisco de Vitoria, offer eloquent elucidation. In an attempt to justify the denial to Indians of the rights enjoyed by other humans, the argument had been widely advanced that Indians were heretics, tainted with mortal sin, and irrational. To this argument Vitoria replied that even heretics and sinners were entitled to own property and could not be punished for their sins without trial(31) and that the Indians were at least as rational as some of the peasants of Spain.(32) Implicit in the argument of Vitoria, who cites as precedents in support of Indian rights the cases of heretics and sinners in Europe and ancient Palestine whose rights were acknowledged by the highest Church authorities, is the doctrine that certain [*p 12] basic rights inhere in men as men, not by reason of their race, creed, or color, but by reason of their humanity.
This doctrine of Vitoria was given papal support in 1537 by the Bull Sublimis Deus, in which Pope Paul III proclaimed:
"We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside, into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic faith but, according to our information, they desire exceedingly, to receive it. Desiring to provide ample remedy for these evils, we define and declare by these our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect."(33)
Almost word for word, this declaration of human rights is repeated in the first important law of the United States on Indian relation, the Northwest Ordinance of 1787, adopted two years before the Federal Constitution, which proclaims:
"The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."
In the Spanish Laws of the Indies one finds a consistent adherence to the principle of racial equality. Thus Book 4, Title 12, Law 9, declares:
"We command that the farms and lands which may be granted to Spaniards be so granted without prejudice to the Indians; and that such as may have been granted to their prejudice and injury be restored to whoever they of right shall belong."(34)
A further provision included in the Laws of the Indies is one requiring special proceedings to determine whether farms owned by Spaniards are located to the prejudice of the Indians, and requiring the removal of any such farms.(35) Other provisions of the Laws of the Indies provided that [*p 13] Indians might establish mining claims in the same manner as Spaniards.(36)
More significant perhaps than any of these positive affirmations of Indian rights is the negative fact that the Laws of the Indies contain no provisions which place the Indian in a position legally inferior to that of the Spaniards. This is not to say that Indians were not widely oppressed under Spanish rule but merely to suggest that the oppression was in defiance of, rather than pursuant to, the laws of Spain.
As the American Colonies appealed to the traditional legal rights of Englishmen when they rebelled against a royal administration that had violated those rights, so the peoples of Latin America appealed again and again to the humane Spanish legal ideal of racial equality in rebelling against administrations which had been faithless to that ideal. Thus it was that the Plan of Iguala, in which the Mexican War of Independence proclaimed its ideals, asserted:
"All the inhabitants of New Spain, without distinction, whether Europeans, Africans or Indians, are citizens of this monarchy, with the right to be employed in any post according to their merit and virtues."(37)
In this respect, then, the guiding legal principle of United States law is one with the principle of Spanish jurisprudence, whatever may have been the failure, on both sides, to make practice conform to ideal.
(2) Tribal Self-Government. Again one may find in the writings of Vitoria the first clear formulation of the principle of tribal self-government. The factual basis of 'this right the Spanish jurist found in the fact that "there is a certain method in their affairs, for they have polities which are orderly arranged and they have definite marriage and magistrates, overlords, laws, and workshops, and a system of exchange, all of which call for the use of reason; they also have a kind of religion".(38) Against the pretensions of Spanish administrators who claimed Indian consent to their tyrannies, Vitoria sought to defend the principle of Indian self-government by pointing out that fear or ignorance on the part of the Indians would vitiate the legal force of such consent.(39) In this he set forth a principle which our federal courts have had frequent occasion to follow.(40) Nevertheless, Vitoria recognized, and the Spanish Crown recognized, as the United States has done, that by democratic process [*p 14] an Indian group might limit its own powers, transferring certain powers of sovereignty to another protecting nation,(41) without thereby destroying its internal autonomy. This, in effect, has been the basis of our 400 treaties with Indian tribes, and although the period of dealing with Indian tribes by treaty has passed, this principle of treating with tribes through voluntary agreement and majority rule characterizes the adoption of tribal constitutions and charters by Indian tribes today under legislation sponsored in 1934 by President Roosevelt.(42)
(3) Central Control of Indian Affairs. While one could not expect to see the principle of federal sovereignty over Indian affairs, which dominates the law of the United States, directly paralleled in the jurisprudence of Spain, which was not a federal republic, the fact remains that the idea of central control, as distinguished from local control, was cardinal in both systems and served the same function. Just as the federal courts in the United States, and other federal officials, have had repeatedly to intercede for the protection of Indian rights threatened by white neighbors or local officials in Indian areas, so the Spanish Crown had repeatedly to intercede to protect the Indians against similar threats. To this end, the office of "General Protector of all Indians" was bestowed by the King of Spain in 1516 upon the leading champion of Indian rights against official corruption and incompetence, Bartholomew de las Casas,(43) much as four centuries later a similar office was conferred by President Roosevelt upon a worthy successor in the courageous tradition of Las Casas, John Collier. To this end, too, the Council of the Indies, in which supreme power over Indian affairs was vested, was established as a direct adviser to the King of Spain, and supreme over all local officials in questions pertaining to Indian affairs. Some such motive must have underlain the insistence of Fra Vitoria that Spaniards in the New World, even when unjustly attacked by Indians, could "build fortresses and defensive works" but could wage war only with "the authorization of their sovereign"(44) and provided that such war was not used as a pretext for slaying the conquered or despoiling them of their goods or seizing their cities.(45) How close these words are to the language of the Northwest Ordinance, of 1787, which forbids local Indian wars by declaring:
"and in their property, rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress: . . ."
It is a striking fact that so often in the history of Spain, Spanish-America, and the United States, oppression of Indians has come from local neighbors and officials and help has come from a far-off central government. Perhaps it is easier for legal ideals to live in a place far enough from the facts to which they are applied so that perspective in judgment is possible and long-range values are not sacrificed to immediate, petty advantages.
(4) Protection of Indian Rights. The doctrine that the Crown had a special responsibility for the protection of Indian rights was highly developed in Spanish law. Thus, for example, the King's attorneys were required to appear on behalf of the Indians in all land cases, and in all cases involving land grants, to which Indians might be parties.(46) Where the suit was between the Indians and the Crown the court was required to appoint a special attorney for the Indians.(47) That Spaniards often trespassed against Indian rights was clear, as is manifest from the fact that in Spanish law, as in the law of the United States, a statute for the protection of Indian rights will often be substantially reenacted from time to time, indicating that the earlier enactment has come to be disregarded or entirely forgotten. Such a statute, for instance, is the Royal Cedula of June 4, 1687,(48) which reenacted long-standing prohibitions against trespass upon Indian lands and set forth the occasion of its enactment in these terms:
[Spanish ranch owners] "are encroaching upon the lands of the latter [Indians], taking the same away from them, either by fraud or violence, by reason of the poor Indians abandoning their houses and settlements this being what the Spaniards long for and aim at, . . ."
Not only did Spain enact ordinances of special stringency to protect Indian lands against trespass, but it sought likewise to protect Indians against the superior bargaining power of the white race by outlawing all transfers of Indian property not made before an appropriate judicial officer under conditions of notice designed to bring to the Indian an adequate return for that which he sold.(49)
Where injuries were committed against Indians by Spaniards, the Spanish law required that such injuries should be punished more severely than similar injuries against Spaniards.(50)
Many other instances might be cited of specific laws exemplifying the responsibility of the Crown for the protection of Indian rights. In Spanish jurisprudence, however, as in our own, there was always danger that a concept of special responsibility for the protection of Indian rights might come to be transformed into a justification for the exploitation of Indians and the confiscation of their property. The institution of guardianship (encomiends) in Hispanic America, like the old "reservation system" in the United States, shows how easily this transition may take place. It must be said, however, that some of the early Spanish jurists clearly saw and warned against this danger. Thus, Vitoria in considering claims to a power of guardianship based upon the superior administrative capacities of the Spaniards as compared with the natives, while declining either to confirm or condemn such a claim, is careful to point out that if such a claim is valid it would have to be subject "to the limitation that any such interposition be for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards. For this is the respect in which danger to soul and salvation lie."(51) An echo answers, 400 years after, in the voice of Justice Cardozo, distinguished descendant of Fra Vitoria's compatriots:
"Power to control and manage the property and affairs of Indians in good faith for their betterment and welfare may be exerted in many ways and at times even in derogation of the provisions of a treaty. . . . The power does not extend so far as to enable the Government 'to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation . . .; for that "would not be an exercise of guardianship, but an act of confiscation." ' . . . The right of the Indians to the occupancy of the lands pledged to them, may be one of occupancy only, but it is 'as sacred as that of the United States to the fee.' . . . Spoliation is not management."(52)
IV. The Historic
Connections Between Spanish Law and the
Law of the United States
To show that the basic principles of the law of the United States relating to Indian rights were derived from Spanish sources, it is not enough [*p 17] to show a basic similarity of principle in the two legal systems. Conceivably such similarity might be fortuitous or the result simply of similar practical situations calling for similar legal treatment. But I think it can be shown that the similarities of principle noted in the foregoing parts of this paper were not fortuitous or the outcome of legal systems isolated from each other but were rather the result of definite Spanish influences which molded the development of legal doctrine in the United States.
To trace the historic ways in which Spain influenced this development of legal doctrine would call alike for space and for talents not available to this writer. At most we can attempt to deal with a few ways in which such influences operated, trusting that these operations will be found by legal historians, upon further research, to be typical.
In the first place, we must recognize that our Indian law originated, and can still be most clearly grasped, as a branch of international law, and that in the field of international law the basic concepts of modern doctrine were all hammered out by the Spanish theological jurists of the sixteenth and seventeenth centuries, most notably by the author of the lectures De Indis, Francisco de Vitoria. It was Vitoria that the Seventh Pan-American Conference, on December 23, 1933, acclaimed as the man who "established the foundations of modern international law."(53)
While Vitoria himself is not directly cited in any of the early opinions of the United States Supreme Court on Indian cases, these opinions frequently refer to statements by Grotius and Vattel that are either copied or adapted from the words of Vitoria. It is thus clear that the tradition of legal teaching carried Vitoria's theories on Indian rights to the judges and attorneys who formulated our legal doctrine in this field. They remained free, of course, to reject Vitoria's theories, but they could not be ignorant of the idea that Indian tribes were dependent nations, possessed of certain rights of sovereignty and property, yet requiring special governmental protection. The history of American legal doctrine reveals that no intellectually satisfying substitute for this basic theory of Indian relations has ever been developed.
The influence of Spanish legal teaching upon the development of legal thought in the United States was supplemented by the influence exerted through official Spanish legal authority. Many of the early opinions of the United States Supreme Court in Indian cases freely cite Spanish [*p 18] decisions, statutes, and other authorities,(54) In part, this is a result of the theory that in international law the nationality of the source cited is of no special consequence. In part, however, the use of Spanish authorities is a result of the fact that most of the territory of the United States was once under Spanish dominion. Under the accepted doctrine of international law that the law of the prior sovereign remains in force in ceded territory until changed by the affirmative action of the new sovereign, all sorts of questions involving Indians require for their decision an examination of Spanish legal authorities.
Moreover, the relevance of Spanish law was formally recognized in treaties by which the United States undertook to recognize property and other rights enjoyed by the inhabitants of the ceded territory under the prior sovereignty. In all Indian cases arising in former Spanish territory it became relevant to inquire into the rights of Indians under the former sovereign. But neither France, in the case of the Louisiana cession,(55) nor Mexico, in the case of the Mexican cession and the Gadsden Purchase,(56) had made any important changes in the fabric of Spanish law in [*p 19] this field. Thus, again, the trail of legal research in cases in the courts of the United States led directly to Spanish authorities.
The Walapai case,(57) to which reference has already been made, offers a recent illustration of the connection between the law of Spain and that of the United States. In that case eminent counsel employed by the railroad argued, and the courts below held, that although tribal occupancy rights had long been respected in other parts of the United States, the Walapai Tribe was located in the area of the Mexican Cession, and therefore, since Spanish law, it was argued, recognized no Indian right of occupancy, the Walapai Tribe came under the dominion of the United States without any land rights whatsoever. The Solicitor of the Interior Department, on the other hand, cited many passages from the writings of Vitoria and from the Laws of the Indies to show that Spain recognized tribal occupancy rights to the same extent as did the United States. In its final decision the Supreme Court rejected as unsound the argument of the railroad on Spanish law and held that Indians in former Spanish territory were in as favorable a legal position, with respect to land rights, as any other Indians in the United States, citing in support of this holding earlier cases which recognized the community of doctrine between Spain and this country on the point.
Finally, one must recognize that throughout the formative period of our Indian law the Indians themselves had a good deal to say about the disposition of their territory. For a long time they outnumbered the white immigrants, and while at first inferior in weapons they speedily acquired and mastered the white man's firearms. Moreover, they knew vastly more about their land and its agricultural(58) and military(59) uses than did [*p 20] the newcomers. By throwing their weight to the British they played a decisive role in wiping out the French Empire in North America. Their attitude towards Spain was a matter of great concern to British and American statesmen through the eighteenth and well into the nineteenth century. Britain and, later, the United States were in a very real sense competitors of Spain for Indian favor, and they could not hope to win that favor if they offered less attractive terms. If the Indians could gain security for their lands and respect for their tribal autonomy from Spain, they were not likely to accept the protection of Britain or that of the United States ion less favorable terms. Thus, in the competition for acceptance, the doctrine of Indian rights first advanced by Vitoria had such an appeal to the Indians that Britain and the United States both felt compelled to accept it as a basis of bargaining. Later, of course, the pressure of competition was removed, but then the respect for the sanctity of the. plighted word operated to prevent any wholesale repudiation of those principles which had once been dictated by practical necessity.
So, in these various ways, by teaching, by legal authority, by treaty, by the force of competition in the market-place of ideas, the doctrines that had been developed by Spanish jurisprudence came to play a guiding role in the development of the conception of Indian rights in the law of the United States. Whether these ideas will play a still larger role in the development of inter-racial and inter-cultural adjustments in the future is one of the most important issues before our generation. It is an issue on which the destiny of great as well as small nations is involved. [*p 21] That the loyalty of native groups can be secured to the democratic cause is proven by the full and generous aid that American Indians are rendering to the Federal Government in a time of crisis. What distinguishes the American Indians from other native groups is not an intrinsic element of racial character, but the nature of their relationship with a government which, while protecting their welfare and their rights, is committed to the principles of tribal self-government and the legal equality of races.
In essence the situation in which Spanish juristic thought first operated on this continent is not dissimilar to that which obtains today over a large part of the world. Two factors now, as then, are involved: a native population in possession of areas rich in natural resources but without the techniques, or without the incentives, needed for the full development of these resources, and, on the other hand, a population with the desire and techniques to exploit these material resources. The problem now, as then, is to preserve the rights and liberties of native groups while permitting the fullest development of the world's resources. In seeking a modus vivendi for racial groups of varying cultures, those who will build a better post-war world can well afford to ponder the legal relationship of American Indians to the Federal Government, which, after three centuries of experience and experimentation, often bitter, conforms more closely today than ever before to the humane legal ideals first formulated by the theological jurisprudence of sixteenth century Spain.
1. B.A., 1926, College of the City of New York; M.A., 1927, Ph.D., 1929, Harvard University; LL.B., 1931, Columbia University. Chairman, Board of Appeals, Department of Interior. Author of: Ethical Systems and Legal Ideas (1933); Handbook of Federal Indian Law (1942); Transcendental Nonsense and the Functional Approach (1935) 35 Col. L. Rev. 809; The Problems of a Functional Jurisprudence (1937) I Modern Law Review 5; The Relativity of Philosophical Systems and the Method of Systematic Relativism (1939) 36 Journal of Philosophy 57; The Social and Economic Consequences of Exclusionary Immigration Laws (1939) 2 Nat. Lawyers Guild Quart. 171.
2. See Introduction, by Solicitor Nathan R. Margold, to Cohen, Handbook of Federal Indian Law (1941) pp. VII to XV.
3. This has been true since the adoption of the act of June 2, 1924, 43 Stat. 253, 8 U.S.C. 3 (1934). Prior to that time most Indians had become citizens under special laws and treaties. See, e.g., Treaty of September 27, 1830, with Choctaws, art. 14, 7 Stat. 333, 335.
4. This Amendment declares: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The Supreme Court, interpreting this provision in United States v. Reese, 92 U.S. 214 (1875) at p. 218, asserted: "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be." Accord, Neal v. Delaware, 103 U.S. 370 (1880). Statutes in three States, Washington, Arizona, and New Mexico, purport to restrict the constitutional right of Indians to vote. Such statutes have been declared unconstitutional by two Attorney Generals of the State of Washington (Op. Att'y. Gen. W. V. Tanner, June 15, 1916; Op. Att'y. Gert. G. W. Hamilton, April 1, 1936); and by the Solicitor of the Department of the Interior (Op. of Solicitor, M. 29596, Jan. 26, 1938); but have been upheld by the courts of Arizona, Porter v. Hall, 34 Ariz. 308, 271 Pac. 411 (1928).
5. United States, ex rel. Standing Bear v. Crook, 25 Fed. Cas. 695, No. 14,891 (C.C. Nebr. 1879).
6. Felix v. Patrick, 145 U.S. 317, 332 (1892); Deere v. St. Lawrence River Power Co., 32 F. (2d) 550 (C.C.A. 2d, 1929).
7. Jones v. Meehan, 175 U.S. 1 (1899); and see United States v. Paine Lumber Co., 206 U.S. 467 (1907).
8. 13 Op. Att'y. Gen. 27 (1869), holding an Iroquois Indian, General Parker, eligible for the post of Commissioner of Indian Affairs.
9. Cohen, Indian Rights and the Federal Courts (1940) 24 Minn. L. Rev. 145; Cohen, op. cit. supra, note 1, at 177-181.
10. 6 Pet. 515, 559-560 (U.S. 1832).
11. Ex parte Crow Dog, 109 U.S. 556 (1883); Standley v. Roberts, 59 Fed. 836 (C.C.A. 8th, 1894); Talton v. Mayes, 163 U.S. 376 (1896); Waldron v. United States, 143 Fed. 413 (C.C.S.D. 1905); Jones v. Meehan, 175 U.S. 1 (1899); Buster v. Wright, 135 Fed. 947 (C.C.A. 8th, 1905), app. dism. 203 U.S. 599 (1906); Cherokee Nation v. Journeycake, 155 U.S. 196 (1894); United States v. Quiver, 241 U.S. 602 (1916); Turner v. United States and Creek Nation, 51 Ct. Cl. 125, aff'd, 248 U.S. 354 (1919); Pueblo of Santa Rosa v. Fall, 273 U.S. 315 (1927).
12. Worcester v. Georgia, 6 Pet. 515 (U.S. 1832); United States v. Kagama, 118 U.S. 375 (1886); United States v. Sutton, 215 U.S. 291 (1909).
13. The most important of such laws is the General Allotment Act of 1887, 24 Stat. 388, 25 U.S.C. 348 (1934), which subjects Indian estates to state laws of inheritance.
14. See Cohen, supra note 8, 24 Minn. L. Rev. 145.
15. United States v. Kagama, 118 U.S. 375, 383 (1886).
16. Thus, for example, the act of March 3, 1893, 27 Stat. 612, 631, 25 U.S.C. 175 (1934), provides: "In all States and Territories where there are reservations or allotted Indians the United States district attorney shall represent them in all suits at law and in equity."
17. In 1704, for example, Connecticut offered bounties from the public treasury of five pounds for every Indian scalp. Conn. Records, IV, 463.
Lord Jeffrey Amherst, English Commander-in-chief, wrote to Colonel Bouquet, in 1763 or 1764: "You will do well to try to inoculate [with small-pox] the Indians by means of blankets, as well as to try every other method that can serve to extirpate this execrable race. I should be very glad your scheme for hunting them down by dogs could take effect." Channing, History of the United States, vol. III (1912), "The American Revolution -- 1761-1789", pp. 15, 27, N. II.
18. Act of July 22, 1790 (1 Stat. 137).
19. Act of April 18, 1796 (1 Stat. 452); act of April 21, 1806 (2 Stat. 402); act of March 2, 1811 (2 Stat. 652); act of March 3, 1815 (3 Stat. 239); act of March 3, 1817 (3 Stat. 363); act of April 16, 1818 (3 Stat. 428); act of March 3, 1819 (3 Stat. 514); act of March 4, 1820 (3 Stat. 544); act of March 3, 1821 (3 Stat. 641). The system of Government trading houses was terminated by the act of May 6, 1822 (3 Stat. 682).
20. Act of July 22, 1790 (1 Stat. 137). The first federal statute containing this restriction on land transfers was reenacted from time to time and is now embodied in 25 U.S.C. 177 (1934).
21. See Cohen, op. cit. supra, note 1, c. 11.
22. See Mitchel v. United States, 9 Pet. 711, 747 (1835); United States v. Shoshone Tribe, 304 U.S. 111, 117 (1938); 1 Ops. Att'y. Gen. 465, 466 (1821); 34 Ops. Att'y. Gen. 181, 187 (1924).
23. See pp. 6, 7, infra.
24. United States, as Guardian of the Indians of the Tribe of Hualpai v. Sante Fe Pacific R.R.Co., 314 U.S. 339 (1941).
25. Act of July 27, 1866 (14 Stat. 292).
26. Johnson v. Mcintosh, 8 Wheat. 543 (U.S. 1823); Worcester v. Georgia, 6 Pet. 515 (U.S. 1832).
27. 249 U.S. 110 (1919).
28. 34 Op. Att'y. Gen. 181 (1924). Advice to the same effect had been given to Secretary Fall by the Solicitor of the Department of the Interior (Opinion of Feb. 12, 1924, A. 2592).
29. At the present time there are pending before the federal courts, by authorization of Congress, Indian suits claiming an aggregate of more than $250,000,000 for violations of treaties and other injuries.
30. The report to the Emperor Philip, Brevissima Relacion de la Destruyccion de las lndias, completed by Fra Bartholomew de las Casas at Valencia on December 8, 1542, contains perhaps the most trenchant criticism of Spanish administration in the New World that has ever been written. It is presented to the Emperor by the writer on the basis of the stated assumption of the rectitude of royal hearts: "If any defect, wrong, and evil is suffered, there can be no other cause than that the Kings are ignorant of it; for if such were manifest to them, they would extirpate them with supreme industry and watchful diligence." The following sections of the report typify the story that is told in some detail, largely on the basis of the personal observations of Las Casas. These observations were, to be sure, supplemented by testimony presented in various law courts and further supplemented by the observations of some of the co-workers of Las Casas in the Western Hemisphere.
"The Indies were discovered in the year fourteen hundred and ninety-two. The year following, Spanish Christians went to inhabit them, so that it is since forty-nine years that numbers of Spaniards have gone there: and the first land, that they invaded to inhabit, was the large and most delightful Isle of Hispaniola, which has a circumference of six hundred leagues.
* * * *
"Among these gentle sheep, gifted by their Maker with the above qualities, the Spaniards entered as soon as they knew them, like wolves, tigers, and lions which had been starving for many days, and since forty years they have done nothing else; nor do they otherwise at the present day, than outrage, slay, afflict, torment, and destroy them with strange and new, and diverse kinds of cruelty, never before seen, nor heard of, nor read of, of which some few will be told below: to such extremes has this gone that, whereas there were more than three million souls, whom we saw in Hispaniola, there are today, not two hundred of the native population left.
* * * *
"Now in God's name consider, you, who read this, what sort of deeds are these, and whether they do not surpass every imaginable cruelty and injustice, and whether it squares well with such Christians as these to call them devils; and whether it could be worse to give the Indians into the charge of the devils of hell than to the Christians of the Indies.
* * * *
"There are others, who go hunting with their dogs in the morning and when one is asked on his return for dinner how it has fared with him, he replies; 'it has fared well with me, because I have left perhaps fifteen or twenty villeins killed by my dogs.'
"I was induced to write this work I, Fray Bartholomeus de las Casas, or Casaus, friar of St. Dominic, who by God's mercy do go about this Court of Spain, trying to drive the hell out of the Indies, and to bring about that all those numberless multitudes of souls, redeemed with the blood of Jesus Christ, shall not hopelessly perish forever; moved also by the compassion I feel for my fatherland, Castile, that God may not destroy it for such great sins, committed against His faith and honour and against fellow creatures. . . ." See MacNutt, Bartholomew De Las Casas, His Life, His Apostolate, and His Writings (1909) pp. 311, 314, 315-316, 330, 411-412.
Here and there, in this terrible chronicle, a happier tale is told, as when Las Casas tells of the visit of Fray Jacomo, with four Franciscan monks, to Yucatan in 1554:
"They sent ahead certain Indians from the province of Mexico as messengers, to inquire whether the natives were satisfied that the said monks should enter their country, to bring them news of the one only God, who is God and true Lord of all the world.
"They [the Indians] assembled many times and consulted about the thing, having first made many inquiries as to what sort of men these were, who called themselves fathers and brothers, and as to what they laid claim; and in what they were different from the Christians from whom they had suffered so many offences and such injustice.
"They resolved at last to receive them, on the condition that they came alone with no Spaniards. . . .
"And afterwards they gave them their own children, whom they love more than the light of their eyes, that they might train them. And they built them churches, monasteries and houses: and friars were invited to other provinces, to preach and bring the natives to the knowledge of God and of him whom they called the great king of Castile.
"And, persuaded by the monks, the Indians did a thing never done again up to the present day; and all that some of those Tyrants pretend about those kingdoms being destroyed by the friars, is falsehood and lies.
"Twelve or fifteen lords, each ruling many vassals and large territories, assembled their people and, after taking their votes and consent, subjected themselves of their own will to the dominion of the kings of Castile, receiving the Emperor, as King of Spain, for their supreme and universal sovereign; and they made some signs, like signatures, which I have in my possession, together with the attestations of the said friars." Id. at 365-367.
31. Victoria, De Indis et de Jure Belli Reflectiones (Nys' ed. 1917) 1, pars. 4-19. These dissertations were delivered in 1532 at the University of Salamanca where Franciscus de Victoria (or Francisco de Vitoria) was professor of theology.
32. Id., par. 24.
33. MacNutt, op. cit. supra note 29, at 429.
34. Law of June 11, 1594 [Recopilacion de Leyes de Los Reynos de las Indias (1681) bk. IV, tit. 12, law 9].
35. Id. bk. 2, tit. 31, law 13 (Instructions to Viceroys, 1596, c. 21).
36. Id. bk. 4, tit. 19, laws 14-16.
37. United States v. Ritchie, 17 How. 525, 538 (U.S. 1854).
38. Vitoria, op. cit. supra note 30, at 1, par. 23.
39. Id., 2, par. 16.
40. While the federal courts have never invalidated an Indian treaty on grounds of duress. they have consistently held that in view of the inequality of. bargaining power all ambiguities in such treaties must be resolved in favor of the Indians. Worcester v. Georgia, 6 Pet. 515 (U.S. 1832); The Kansas Indians, 5 Wall. 737 (U.S. 1866); Winters v. United States, 207 U.S. 564 (1908).
41. A State can appoint any one it will to be its lord, and herefor the consent of all is not necessary, but the consent of the majority suffices. For, as I have argued elsewhere in matters touching the good of the State the decisions of the majority bind even when the rest are of a contrary mind; otherwise naught could be done for the welfare of the State, it being difficult to get all of the same way of thinking." Vitoria, op. cit. supra note 30 at 3, par. 16.
42. 48 Stat. 984, 25 U.S.C. 461 et seq. (1934).
43. MacNutt, op. cit. supra note 29, at 86.
44. Vitoria, op. cit. supra note 30, 3, par. 6.
46. Law of May 24, 1571 (op. cit. supra note 33, bk. 2, tit. 18, law 36).
47. Law 35, approved Feb. 13, 1554.
48. Hall, Laws of Mexico (1885) p. 64.
49. Op. cit. supra note 33, bk. 6, tit. 1, law 27.
50. The Law of Dec. 19, 1593, provides:
"ordenamos y mandamos que sean castigados con mayor rigor los espanoles que injuriaren, u ofendieren, o maltrataren a indios, que si los mismos delitos se cometiesen contra espanoles y los declaramos por delitos publicos."
(We ordain and command that Spaniards who injure or offend or maltreat Indians shall be punished with greater severity than if the same tortious acts had been committed against Spaniards, and we declare such acts to be public offenses.)
51. Vitoria, op. cit supra note 30, 3, par. 18.
52. Shoshone Tribe v. United States, 299 U.S. 476, 497-498 (1937). This was a case in which the Federal Government, after recognizing the claim of the Shoshone Tribe to certain lands, placed other Indians on part of these lands. The Supreme Court ultimately affirmed a judgment against the Federal Government in favor of the Indians in the amount of $4,408,444.23 plus interest. United States v. Shoshone Tribe, 304 U.S. 111 (1938).
53. See also the brochure on the Spanish Origin of International Law (1928) by James Brown Scott, former Solicitor for the Department of State and President of the American Institute of Law, the American Society of International Law, and the Institut de Droit International, which reaches the conclusion: ". . . in the lecture of Vitoria on the Indians, and in his smaller tractate on War, we have before our very eyes, and at hand, a summary of the modern law of nations."
54. Johnson v. Mcintosh, 8 Wheat. 543 (U.S. 1823); Mitchel v. United States, 7 Pet. 711 (U.S. 1835); Choteau v. Molony, 16 How. 203 (U.S. 1853).
55. The Treaty of April 30, 1803, for the cession of Louisiana, provided:
"Art. III. The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
"Art. VI. The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon."
56. Thus the Treaty of Guadalupe Hidalgo (Treaty of Feb. 2, 1848, 9 Stat. 922) provided:
"Article VIII. Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever.
"Those who shall prefer to remain in the said territories, may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. . . .
"In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected."
"Article IX. Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution: and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction."
57. 314 U.S. 339 (1941).
58. It has been estimated by competent authorities that four-sevenths of the total agricultural production in the United States (in farm value) consists of plants domesticated by Indians and taken over by whites, and it has been noted that where the whites took over plants they also took over Indian methods of planting, irrigation, cultivation, storage, and use. See Edwards, Agriculture of the American Indian (U.S. Dept. of Agriculture, 1933) p. v; Bureau of American Ethnology Bulletin No. 30, vol. 1, p. 25.
59. In the case of Scott v. United States and Apache Indians, 33 Ct. Cl. 486 (1898), the Court of Claims had to determine whether the destruction of certain property by Apache Indians had occurred by reason of a state of war. In answering this question in the affirmative, the court observed:
"The military forces engaged at the time of the surrender consisted, on the part of the United States, of 42 companies of cavalry and infantry; on the part of our ally, the Republic of Mexico, of 4,000 men; and on the part of the common enemy, the Apaches, of not more than 50 men and a few women.
". . . But the costly record of Geronimo is one which never can be questioned. His campaign taxed the powers of two great civilized governments; it involved a treaty which allowed the forces of the one to cross the frontier of the other; it received the energy and experience and ability of our two greatest masters of Indian warfare, General Crook and General Miles. The war was waged, on the part of the United States at least, with the best military appliances of modern warfare, including steam, electricity, and the heliostat; and, more valuable than any other element in the military case, it was an instance of Apache against Apache, for our troops were led by Apache scouts, who faithfully and heroically served the Government. Yet Geronimo armed his band with the best of modern breech-loaders and ammunition, and even equipped them with field glasses taken from us, and drew his supplies from wherever he would, and inflicted incalculable damage on the country of both of his enemies, and carried on his last campaign successfully for five months. There is not, probably, in the history or traditions or myths of the human race another instance of such prolonged resistance against such tremendous odds.
"Moreover, the Indian soldier was successful even in the ending of his campaign; for the surrender of this paltry band involved more prolonged negotiation than the army of Burgoyne at Saratoga or of Lee at Appomattox, and concluded by the granting of terms that the surrender be 'as prisoners of war to an army in the field' -- terms which effectually removed the sagacious savage and his followers beyond the jurisdiction of the civil authorities." (At pp. 487-488).
After the Seven Years' War was over, Britain controlled all of North America east of the Mississippi. Settlers from the Thirteen Colonies were anxious to move into the Ohio Valley now that it was free of French influence, but the lands were still in the possession of Indian Nations who were rightly suspicious of 'Yankee' motives and resented their intrusion. Pontiac's Rebellion along the frontier began in August of 1763.
At the same time, Britain was moving to consolidate its gains and implement governing structures. The new territories would be organized into four areas: Quebec, East Florida, West Florida and the island of Grenada. This is set out in the opening paragraphs of the Proclamation, and details of their governance and settlement in later sections.
The lands west of the Appalachian height of land were "reserved" to the Indians as their Hunting Grounds. They were not included in any colony, and colonists were expressly forbidden to enter into land negotiations with the Indians -- because of "great Frauds and Abuses" -- and the Crown reserved to itself the exclusive right to negotiate cessions of Indian title. At the same time, settlement was forbidden. While the Indian Nations governed the Proclamation Territory under their own laws, the Crown also directed that non-Aboriginal fugitives from justice could be pursued and taken within Indian lands. In Canada, the Proclamation is the basis of our understanding of the legal nature of Indian title and an historical root of the treaty process. Its provisions underlie the surrenders and designations of reserve land which still take place pursuant to the Indian Act.
In practice, the Proclamation failed to stifle expansionist ambitions in the Thirteen Colonies. The Crown used the Quebec Act, 1774 as a device to re-assert its control within the Proclamation lands by extending the former boundaries of Quebec down to the Ohio River near what is now Pittsburgh, then down the Ohio the Mississippi and north to Rupert's Land. This was one of the complaints advanced by the colonists two years later in their Declaration of Independence. Historical events subsequently excluded much of the Proclamation territory from British control and from Canada, but it is still relevant to the development of Canadian law. The Proclamation is not formally part of the Constitution of Canada, but it is referred to in section 25 of the Canadian Charter of Rights and Freedoms.
The headings included in the text below are for convenience; they are not part of the original text. It should also be noted that the map is also a reference tool. It is not an official map and the courts have since applied the Proclamation to areas not shown on it as "Indian Territory". The full extent of the territorial application of the Proclamation in Canada is still subject to dispute and there is little doubt that its reach as a foundation of our Aboriginal law is much broader.
Whereas We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris the 10th Day of February last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council. to issue this our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under our Great Seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows, viz.
First--The Government of Quebec bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipissing; from whence the said Line, crossing the River St. Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea; and also along the North Coast of the Baye des Châleurs, and the Coast of the Gulph of St. Lawrence to Cape Rosières, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St. John.
Secondly--The Government of East Florida, bounded to the Westward by the Gulph of Mexico and the Apalachicola River; to the Northward by a Line drawn from that part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary's River. and by the course of the said River to the Atlantic Ocean; and to the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast.
Thirdly--The Government of West Florida, bounded to the Southward by the Gulph of Mexico, including all Islands within Six Leagues of the Coast; from the River Apalachicola to Lake Pontchartrain; to the Westward by the said Lake, the Lake Maurepas, and the River Mississippi; to the Northward by a Line drawn due East from that part of the River Mississippi which lies in 31 Degrees North Latitude. to the River Apalachicola or Chatahouchee; and to the Eastward by the said River.
Fourthly--The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and the Islands of Dominico, St. Vincent's and Tobago. And to the end that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the adjacent Islands. We have thought fit, with the advice of our said Privy Council to put all that Coast, from the River St. John's to Hudson's Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the care and Inspection of our Governor of Newfoundland.
We have also, with the advice of our Privy Council. thought fit to annex the Islands of St. John's [now Prince Edward Island] and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia.
We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia all the Lands Iying between the Rivers Alatamaha and St. Mary's.
And whereas it will greatly contribute to the speedy settling of our said new Governments, that our loving Subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government: And We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies; and in the mean Time, and until such Assemblies can be called as aforesaid [see Campbell v. Hall (1774), 1 Cowp. 204, 98 E.R. 1045], all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council.
Note: English laws were not globally acceptable in Quebec, especially in matters of "property and civil rights". The The Quebec Act, 1774 reinstated French civil law to apply in respect of such matters and the phrase survives in section 92 of the Constitution Act, 1867. The American colonists, however, viewed the extension of the territory of Quebec with alarm and described the French legal regime, then not codified as it is today, as an "arbitrary system of laws" .
We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies upon the Continent, full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands, Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies.
And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and Approbation of the Conduct and bravery of the Officers and Soldiers of our Armies, and to reward the same, We do hereby command and impower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North America, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz.
To every Person having the Rank
of a Field Officer--5,000 Acres.
To every Captain--3,000 Acres.
To every Subaltern or Staff Officer,--2,000 Acres.
To every Non-Commission Officer,--200 Acres.
To every Private Man--50 Acres.
We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants.
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 Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, 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 Lands 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 North West 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 especial leave and Licence 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 described. 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 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: and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to send them under a proper guard to the Colony where the Crime was committed, of which they stand accused, in order to take their Trial for the same.
Given at our Court at St. James's the 7th Day of October 1763, in the Third Year of our Reign.
GOD SAVE THE KING
[ END OF TEXT ]
X.x Original Indian Title (1947).
Minnessota Law Review
Vol. 32, pp. 28-59 (1947)
I. Indian Clouds on Land Grant Titles.
Recent decisions of the Supreme Court recognizing the validity of original Indian title(3) make the existence and extent of such aboriginal ownership a relevant issue in title examinations whenever a chain of title is traced back to a federal grant or patent. Grantees who have relied on the Great Seal of a federal department as assuring the validity of land grant titles have not infrequently discovered to their sorrow the truth of the old French saying, "Meme le plus belle fille du monde ne peut donner que ce que l'a." Not even the Federal Government can grant what it does not have. The nature of Indian title and its extinguishment thus becomes, in those states that have been carved out of the Federal public domain, a matter of concern to real property lawyers generally.
The leading Supreme Court case that establishes the invalidity of federal grants that ignore Indian title is the case of Moose Dung(4) (such being the polite English translation of Chief Monsimoh's Chippewa name). Here a federal lease which appeared on its face to be perfectly valid, and which had been specially confirmed by a joint resolution of Congress,(5) was held invalid by the Supreme Court, on the ground that neither the Secretary of the Interior nor the Congress of the United States had constitutional power to disregard Indian property rights. The right to dispose of this property, the Court held, was vested in the Indian owner, Chief Moose Dung the Younger. By tribal custom he was entitled to the land that had been promised(6) to his father, Chief Moose Dung the Elder. The Court accordingly held that Jones, the lessee under a lease executed and approved by the Department of the <<28>> Interior,(7) could be evicted by the Meehans, who had relied on an unapproved lease, allowing the use of land for lumbering purposes, granted by the Indian owner, the younger Moose Dung. The Supreme Court summed up its decision in these words:
"The title to the strip of land in controversy, having been granted by the United States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death, by the laws, customs and usages of the tribe, to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be divested by any subsequent action of the lessor, or of Congress, or of the Executive Departments." (At p. 32.)
Standing by itself, the decision in Jones v. Meehan might be narrowly interpreted as applying only where Indian land rights were assured and recognized by treaty. But the case of Cramer v. United States,(8) decided 24 years later, made it plain that the Supreme Court would not so limit the rule of respect for Indian title. For in the Cramer case the Indian title had never been recognized by treaty, act of Congress, or Executive order. What was involved was an area claimed by Indians by right of occupancy initiated before 1859. Yet the Supreme Court held that the Indian right of occupancy, even though it had not been formally recognized, was not terminated by a subsequent statutory grant. In this case the Court did not face the constitutional question of whether a valid grant divesting Indian title could have been made to the railroad, since it was able to put upon the Congressional grant a narrow construction that saved the land rights of the Indians. The railroad land grant statute(9) in the Cramer case had excepted from the scope of the grant all lands "reserved . . . or otherwise disposed of." The Department of the Interior, in 1904, issued patents to the Central Pacific Railway Company, on the assumption that there was no reservation or other encumbrance to prevent the passage of full title to the grantee. Yet the Supreme Court, in <<29>> 1923, held that this departmental action disregarding Indian rights was erroneous. "The fact that such [Indian] right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive. The right, under the circumstances here disclosed, flows from a settled governmental policy." (at p. 229).
The policy on which the Supreme Court based its decision in the Cramer case it spelled out in these words:
"Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which Could only be interfered with or determined by the United States. Beecher v. Wetherby, 95 U.S. 517, 525; Minnesota v. Hitchcock, 185 U.S. 373, 385. It is true that this policy has had in view the original nomadic tribal occupancy, but it is likewise true that in its essential spirit it applies to individual Indian occupancy as well; and the reasons for maintaining it in the latter case would seem to he no less cogent, since such occupancy being of a fixed character lends support to another well understood policy, namely, that of inducing the Indian to forsake his wandering habits and adopt those of civilized life. That such individual occupancy is entitled to protection finds strong support in various rulings of the Interior Department, to which in land matters this Court has always given much weight. Midway Co. v. Eaton, 183 U.S. 602, 609; Hastings & Dakota R. R. Co. v. Whitney, 132 U.S. 357, 366. That department has exercised its authority by issuing instructions from time to time to its local officers to protect the holdings of non-reservation Indians against the efforts of white men to dispossess them. See 3 L.D. 371; 6 L.D. 341; 32 L.D. 382. In Poisal v. Fitzgerald, 15 L.D. 19, the right of occupancy of an individual Indian was upheld as against an attempted homestead entry by a white man. In State of Wisconsin, 19 L.D. 518, there had been granted to the State certain swamp lands within an Indian reservation, but the right of Indian occupancy was upheld, although the grant in terms was not subject thereto. In Ma-Gee-See v. Johnson, 30 L.D. 125, Johnson had made an entry under Par. 2289, Rev. Stats., which applied to 'unappropriated public lands.' It appeared that at the time of the entry and for some time thereafter the land had been in the possession and use of the plaintiff, an Indian. It was held that under the circumstances the land was not unappropriated within the meaning of the statute, and therefore not open to entry. In Schumacher v. State of Washington, 33 L.D. 454, 456, certain lands claimed by the State under a school grant, were occupied and had been improved by an Indian living apart from his tribe, but application for allotment had not been made until after the State had sold the land. It was held that the grant to the State did not attach under the provision excepting lands 'otherwise disposed of by or under authority of an act of Congress.' Secretary Hitchcock, in deciding the case, said:
'It is true that the Indian did not give notice of his intention <<30>> to apply for an allotment of this land until after the State had made disposal thereof, but the purchaser at such sale was bound to take notice of the actual possession of the land by the Indian if, as alleged, he was openly and notoriously in possession thereof at and prior to the alleged sale, and that the act did not limit the time within which application for allotment should be made.'
"Congress itself, in apparent recognition of possible individual Indian possession, has in several of the state enabling acts required the incoming State to disclaim all right and title to lands 'owned or held by any Indian or Indian tribes.' See 25 Stat. 676, c. 180, Par. 4, par. 2; 28 Stat. 107, c. 138, Par. 3, par. 2.
"The action of these individual-Indians in abandoning their nomadic habits and attaching themselves to a definite locality, reclaiming, cultivating and improving the soil and establishing fixed homes thereon was in harmony with the well understood desire of the Government which we have mentioned. To hold that by so doing they acquired no possessory rights to which the Government would accord protection, would be contrary to the whole spirit of the traditional American policy toward these dependent wards of the nation."
As against these general indications of a policy to respect Indian occupancy rights, the defendant Cramer, the railroad's assignee, argued that in this particular case the Interior Department had concluded that the Indians had no rights to the land, had recognized the title of the railroad grantee, and had in fact negotiated a lease of the land from the defendant. Tiffs argument the Court rejected, with the comment:
"Neither is the Government estopped from maintaining this suit by reason of any act or declaration of its officers or agents. Since these Indians with the implied consent of the Government had acquired such rights of occupancy as entitled them to retain possession as against the defendants, no officer or agent of the Government had authority to deal with the land upon any other theory. The acceptance of leases for the land from the defendant company by agents of the Government was, under the circumstances, unauthorized and could not bind the Government; much less could it deprive the Indians of their rights." (At p. 234.)
The lower court was accordingly instructed "to amend its decree so as to cancel the patent in respect of the lands possessed by the Indians." (At p. 236.)
Such was the state of the law when, in 1925, the Department of the Interior sought to patent half of the Hualapai Indian Reservation in Arizona to the Santa Fe Pacific Railway. The theory of this transaction was that when the reservation was established in 1883 half of the land, i.e., the odd-numbered sections, already <<31>> belonged to the railroad grantee under the act of July 27, 1866 (14 Star. 292). Congress implicitly ratified this view of the situation when it authorized the Secretary of the Interior to arrange an exchange of Indian and railroad lands within the reservation which would simplify the boundaries between railroad and Indian lands.(10) But when the Interior Department tried to carry out the mandate of Congress, the Indians and their friends(11) objected on the ground that the railroad, rightfully, had no lands to exchange, since aboriginal title long antedated the railroad grant. After some years of protests, charges, counter-charges, and administrative opinions rejecting the Indians' contentions,(12) a suit was instituted in 1937 to vindicate the possessory rights of the Indians. (Here, as in the Cramer case, there was no treaty or act of Congress confirming or defining the Indians' rights). When the case reached the Supreme Court in 1941, after two decisions against the Indians in the lower courts, the Attorney General of Arizona filed a brief urging that "Any suggestion by this Court that Indian tribes might have rights in property enforcible in a court of law by the mere fact of occupancy would at least cast a cloud upon the title to the major portion of Arizona."(13)
Despite this warning, the Supreme Court unanimously decided the issue in favor of the Indians, holding that Indian occupancy, even though unrecognized by treaty or act of Congress, established property rights valid against non-Indian grantees such as the defendant railroad. The Court did not have to face the constitutional issue which it decided in Jones v. Meehan, because here, as in the Cramer case, there was language in the Congressional granting act which could be interpreted as protecting and safeguarding Indian rights.
While the Court did not therefore pass on the validity of any legislation, it did necessarily pass on the validity of departmental action purporting to recognize railroad rights to the exclusion of Indian rights. With respect to this, the unanimous opinion of the Court declared:
"Such statements by the Secretary of the Interior as that 'title <<32>> to the odd-numbered sections' was in the respondent [railroad] do not estop the United States from maintaining this suit. For they could not deprive the Indians of their rights any more than could the unauthorized leases in Cramer v. United States, supra." (at p. 355).
At the same time the Court rejected various other contentions advanced by the railroad, such as the argument that Indian land rights had been wiped out by the Mexican cession treaty(14) or by acts of Mexican or Spanish sovereignty, or by a long course of Congressional statutes opening western lands to settlement. The upshot of the case was that on March 13, 1947, the trial court entered a decree, consented to by all parties, establishing Indian title to some 509,000 acres of land which two Departments of the Government had promised to the defendant railroad. Notwithstanding the fears expressed by the Attorney General of Arizona, there has been no substantial decline in Arizona realty values as a result of the decision.
The fears expressed by the Attorney General of Arizona were not, on the surface, unreasonable. Concern lest arguments in favor of the Indians might result in imposing vast liabilities on the Federal Government led the Attorney General of the United States in 1941, to decline to argue the case, so that the Indian side of the case had to be presented by the Solicitor of the Department of the Interior.
A similar fear was recently expressed by the three justices of the Supreme Court who dissented from the decision of the Court in the Alcea case(15) on the ground that this decision, awarding compensation for a taking of original Indian title, would set a precedent compelling the United States to pay other tribes for other areas so taken, which "must be large" (at p. 56).
The fear that recognizing Indian title, or paying Indians for land, would unsettle land titles everywhere and threaten the Federal Government with bankruptcy would be well grounded if there were any factual basis for the current legend of how we acquired the United States from the Indians. If, as the cases hold, federal grants are normally subject to outstanding Indian titles, and if, over extensive areas where such grants have been made, Indian title has in fact never been lawfully extinguished, then a vast number of titles must today be subject to outstanding Indian possessory rights. The fact, however, is that except for a few tracts of land <<33>> in the Southwest. practically all of the public domain of the continental United States (excluding Alaska) has been purchased from the Indians. It was only because the Hualapai case fell within an area where no Indian land cessions had been effected that the railroad title was held invalid. This means, of course, that the titles of railroads and other grantees of the Federal Government elsewhere in the United States may likewise depend upon whether the Federal Government took the precaution of settling with Indian land owners before disposing of their land.
Fortunately for the security of American real estate titles, the business of securing cessions of Indian titles has been, on the whole, conscientiously pursued by the Federal Government, as long as there has been a Federal Government. The notion that America was stolen from the Indians is one of the myths by which we Americans are prone to hide our real virtues and make our idealism look as hard-boiled as possible. We are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical.
It is, in fact, difficult to understand the decisions on Indian title or to appreciate their scope and their limitations if one views the history of American land settlement as a history of wholesale robbery. The basic historic facts are worth rehearsing before we attempt analysis of the cases dealing with the character and scope of original Indian title.
II. How We Bought the United States(16)
Every American schoolboy is taught to believe that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia, and that for all the continental lands so purchased we paid about 50 million dollars out of the Federal Treasury. Most of us believe this story as unquestioningly as we believe in electricity or corporations. We have seen little maps of the United States in our history books and big maps in our geography books showing the vast area that Napoleon sold us in 1803 for 15 million dollars and the various other cessions that make up the story of our national expansion. As for the original Indian owners of the continent, the common impression is that we took the land from them by force and pro-<<34>>ceeded to lock them up in concentration camps called "reservations."
Notwithstanding this prevailing mythology, the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original Indian owners.(17) What we acquired from Napoleon in the Louisiana Purchase was not real estate, for practically all of the ceded territory that was not privately owned by Spanish and French settlers was still owned by the Indians, and the property rights of all the inhabitants were safeguarded by the terms of the treaty of cession.(18) What we did acquire from Napoleon was not the land, which was not his to sell, but simply the power to govern and to tax, the same sort of power that we gained with the acquisition of Puerto Rico or the Virgin Islands a century later.
It may help us to appreciate the distinction between a sale of land and the transfer of governmental power if we note that after paying Napoleon 15 million dollars for the cession of political authority over the Louisiana Territory we proceeded to pay the Indian tribes of the ceded territory more than twenty times this sum for such lands in their possession as they were willing to sell. And while Napoleon, when he took his 15 million dollars, was thoroughly and completely relieved of all connections with the territory, the Indian tribes were wise enough to reserve(19) from <<35>> their cessions sufficient land to bring them a current income that exceeds each year the amount of our payment to Napoleon. One of these reservations, that of the Osages, has thus far brought its Indian owners 280 million dollars in oil royalties. Some other Indian tribes, less warlike, or less lucky, than the Osages, fared badly in their real estate transactions with the Great White Father. But in its totality the account of our land transactions with the Indians is not small potatoes. While nobody has ever calculated the total sum paid by the United States to Indian tribes as consideration for more than two million square miles of land purchased from them, and any such calculation would have to take account of the conjectural value of a myriad of commodities, special services, and tax exemptions, which commonly took the place of cash, a conservative estimate would put the total price of Indian lands sold to the United States at a figure somewhat in excess of 800 million dollars.
In some cases payment for ceded land has been long delayed. Most of the State of California falls within an area which various Indian tribes of that region had undertaken to cede to the United States in a series of treaties executed in the 1850's. The treaties called for a substantial payment in lands, goods, and services. The Federal Government took the land but the Senate refused to ratify the treaties, which were held in secret archives for more than half a century. Eventually Congress authorized the Indians to sue in the Court of Claims for the compensation promised under the unratified treaties,(20) and that Court found that the Indians were entitled to receive $17,053,941.98, from which, however, various past expenditures by the Federal Government for the benefit of the California Indians had to be deducted. The net recovery amounted to $5,024,842.34.
The settlement of the California land claims closes a chapter in our national history. Today we can say that from the Atlantic to the Pacific our national public domain consists, with rare exceptions,(21) of lands that we have bought from the Indians. Here and there we have probably missed a tract, or paid the wrong Indians for land they did not own and neglected the rightful owners. But the keynote of our land policy has been recognition of <<36>> Indian property rights.(22) And this recognition of Indian property rights, far from hampering the development of our land, was of the greatest significance in such development. Where the Govern-<<37>>ment had to pay Indians for land it could not afford to give the land away to favored retainers who could, in turn, afford to hold the land in idleness. Because land which the Government had paid for had to be sold to settlers for cash or equivalent services, our West has escaped the fate of areas of South America, Canada, and Australia, which, after being filched from native owners, were turned over, at the same price, to court favorites, Government bureaus, or other absentee owners incapable of, or uninterested in, developing the potential riches of the land.
Granted that the Federal Government bought the country from the Indians, the question may still be raised whether the Indians received anything like a fair price for what they sold. The only fair answer to that question is that except in a very few cases where military duress was present the price paid for the land was one that satisfied the Indians. Whether the Indians should have been satisfied and what the land would be worth now if it had never been sold are questions that lead us to ethereal realms of speculation. The sale of Manhattan Island for $24 is commonly cited as a typical example of the white man's overreaching. But even if this were a typical example, which it is not, the matter of deciding whether a real estate deal was a fair bargain three hundred years after it took place is beset by many pitfalls. Hindsight is better than foresight, particularly in real estate deals. Whether the land the Dutch settlers bought would become a thriving metropolis or remain a wilderness, whether other Indian tribes or European powers would respect their title, and how long the land would remain in Dutch ownership were, in 1626, questions that were hid in the mists of the future. Many acres of land for which the United States later paid the Indians in the neighborhood of $1.25 an acre, less costs of surveying, still remain on the land books of the Federal Government, which has found no purchasers at that price and is now content to lease the lands for cattle grazing at a net return to the Federal Government of one or two cents per annum per acre.
Aside from the difference between hindsight and foresight, there is the question of the value of money that must be considered wherever we seek to appraise a 300-year-old transaction. There are many things other than Manhattan Island that might have been bought in 1626 for $24 that would be worth great fortunes today. Indeed if the Indians had put the $24 they received for Manhattan at interest at 6 per cent they could now, with the accrued interest, buy back Manhattan Island at current realty valua-<<38>>tions and still have four hundred million dollars or more left over. Besides which, they would have saved the billions of dollars that have been spent on streets, harbors, aqueducts, sewers, and other public improvements to bring the realty values of the island to their present level.
Again in appraising the value of $24 worth of goods in 1626 one must take account of the cost of delivery. How much did it cost in human life and labor to bring $24 worth of merchandise from Holland to Manhattan Island across an almost unknown ocean? What would $24 worth of food f.o.b. New York be worth to an exploring party at the South Pole today that needed it?
These are factors which should caution against hasty conclusions as to the inadequacy of payments for land sales made hundreds of years ago, even when such sales were made between white men. But in the earliest of our Indian land sales we must consider that representatives of two entirely different civilizations were bargaining with things that had very different values to the different parties. It is much as if a representative of another planet should offer to buy sea water or nitrogen or some other commodity of which we think we have a surplus and in exchange offer us pocket television sets or other products of a technology higher than our own. We would make our bargains regardless of how valuable nitrogen or sea water might be on another planet and without considering whether it cost two cents or a thousand dollars to make a television set in some part of the stellar universe that we could not reach. In these cases we would be concerned only with the comparative value to us of what we surrendered and what we obtained.
So it was with the Indians. What they secured in the way of knives, axes, kettles and woven cloth, not to mention rum and firearms,(23) represented produce of a superior technology with a use value that had no relation to value in a competitive market three thousand miles across the ocean. And what is probably more important, the Indians secured, in these first land transactions, something of greater value than even the unimagined products of European technology, namely, a recognition of the just principle that free purchase and sale was to be the basis of dealings between the native inhabitants of the land and the white immigrants.
Three years after the sale of Manhattan Island the principle <<39>> that Indian lands should be acquired only with the consent of the Indians was written into the laws of the Colony of New Netherlands:
"The Patroons of New Netherlands, shall be bound to purchase from the Lords Sachems in New Netherland, the soil where they propose to plant their colonies, and shall acquire such right thereunto as they will agree for with the said Sachems."(24)
Connecticut, New Jersey, and Rhode Island were quick to adopt similar laws and within a short time all of the colonies had adopted laws in the same vein. Only in Massachusetts and North Carolina were there significant departures from this just and honorable policy. In North Carolina generally anarchic conditions left individual settlers relatively free to deal with or dispose of Indians as they pleased, with the result that less than half of the State was actually purchased from the natives. In Massachusetts, although Plymouth Colony "adopted the just policy of purchasing from the natives the lands they desired to obtain" (Royce. op. cit. p. 601), Puritan Massachusetts, with much pious citation of Old Testament precedents, asserted the right to disregard Indian claims to unimproved and uncultivated lands. Despite this claim, the Puritans were prudent enough to purchase considerable areas of land from the native inhabitants.
In 1636 one of the most famous real estate transactions in American history took place when Chief Canonicus of the Narragansetts granted to Roger Williams and his 12 companions,
"all that neck of land lying between the mouths of Pawtucket and Moshasuck rivers, that they might sit down in peace upon it and enjoy it forever."
Here, as Williams observed to his companions,
"The Providence of God had found out a place for them among savages, where they might peaceably worship God according to their consciences; a privilege which had been denied them in all the Christian countries they had ever been in."
Perhaps it was only natural that the first settlers, on these shores, who were for many decades outnumbered by the Indians and unable to defeat any of the more powerful Indian tribes in battle, should have adopted the prudent procedure of buying lands that the Indians were willing to sell instead of using the more direct methods of massacre and displacement that have commonly prevailed in other parts of the world. What is significant, however, <<40>> is that at the end of the 18th Century when our population east of the Mississippi was at least 20 times as great as the Indian population in the same region and when our army of Revolutionary veterans might have been used to break down Indian claims to land ownership and reduce the Indians to serfdom or landlessness, we took seriously our national proclamation that all men are created equal and undertook to respect the property rights which Indians had enjoyed and maintained under their rude tribal governments. Our national policy was firmly established in the first great act of our Congress, the Northwest Ordinance of July 13, 1787, which declared:
"Art. 3. * * * The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."
Here was a principle of government far higher than contemporary standards of private dealing. During much of this period pioneers were shooting Indians and denouncing the long arm of the Federal bureaucracy that tried to protect Indian lands from trespass and Indians from debauchery.(25) The most famous of all Indian cases(26) was one in which the Supreme Court of the United States denied the power of the State of Georgia to invade the territory of the Cherokees, guaranteed by Federal treaty, and the State of Georgia defied the mandate of the Court, whereupon the tough Indian fighter in the White House grimly declared: "John Marshall has made his decision; now let him enforce it."(27) But the Congress and the Federal Courts stood by the principle of respect for Indian possessions until it won common acceptance.
As far back in our national history as 1794 we find the United State agreeing to pay the Iroquois, for a cession of land, the sum of $4,500 annually forever, in
"clothing, domestic animals, implements of husbandry, and other utensils * * * and in compensating useful artificers who shall * * * be employed for their benefit."(28)
The payments are still being made, with much ceremony. In 1835 we find the Federal Government buying a tract of land from the Cherokees for 5 million dollars,(29) a very large part of the annual national budget in those days.(30) In 1904 the Turtle Mountain Chippewa, sold a large part of North Dakota to the United States for one million dollars.(31) To this day we are paying Indians for lands long ago conveyed. Only occasionally does this payment take the form of cash. Far-seeing Indian chiefs knew that cash would soon be dissipated and leave later generations helpless in an alien world that had no place for ancient skills of hunters. Regularly the old treaties called for payments in goods, chiefly agricultural implements and cattle, in services -- above all medical services and education -- and in such special privileges as exemption from certain land taxes, because of which the Federal Government must now furnish to Indians many services which States and counties refuse to provide. It was to furnish these services that the Indian Bureau was established, and to this day the appropriations to that Bureau go primarily to paying for these promised services. We have already spent at least one and a half billion dollars on our Indian population, and more than half of this sum is traceable to obligations based on land cessions.
This is not to say that our Indian record is without its dark pages. We have fallen at times from the high national standards we set ourselves.
The purchase of more than two million square miles of land from the Indian tribes represents what is probably the largest real estate transaction in the history of the world. It would be miraculous if, across a period of 150 years, negotiations for the purchase and sale of these lands could be carried on without misunderstandings and inequities. We have been human, not angelic, in our real-estate transactions. We have driven hard Yankee bargains when we could; we have often forgotten to make the payments that we promised, to respect the boundaries of lands that the Indians reserved for themselves, or to respect the privileges of tax exemption, or hunting and fishing, that were accorded to Indian tribes in exchange for the lands they granted us. But when Congress has been fairly apprised of any deviation from the plighted word of the United States, it has generally been willing to submit to <<42>> court decision the claims of any injured Indian tribe.(32) And it has been willing to make whatever restitution the facts supported for wrongs committed by blundering or unfaithful public servants. There is no nation on the face of the earth which has set for itself so high a standard of dealing with a native aboriginal people as the United States and no nation on earth that has been more self-critical in seeking to rectify its deviations from those high standards.
The 5 million dollar judgment won by the California Indians is only the most recent of a series of awards won by Indian tribes in the Federal Courts. In 1938 the Supreme Court awarded the Shoshone Tribe of Wyoming a judgment of $4,408,444.23, as compensation for the loss of a part of the Shoshone Reservation which Federal authorities illegally (i.e. without the consent of the Shoshone owners of the reservation) assigned to Indians of another tribe.(33) The same session of the Court affirmed a judgment in favor of the Klamath Indians for $5,313,347.32, the value of lands reserved by the Klamaths for their own use which the United States erroneously conveyed to the State of Oregon.(34) What is important about these cases is that they represent an honest, if sometimes belated, effort to make good on the promises that the Federal Government has made to Indian tribes in acquiring the land of this nation. And, as a great leader of the 30 million Indians who dwell south of our borders has said, what is great about democracy is not that it does not make mistakes, but that it is willing to correct the human mistakes it has made.(35)
III. The Doctrinal Origins of Indian Title.
The decisions on Indian title can hardly he understood unless it is recognized that dealings between the Federal Government and the Indian tribes have regularly been handled as part of our international relations. As in other phases of law which turn on international relations, common law concepts have become heavily overlaid with continental jurisprudence. Our concepts of Indian title derive only in part from common law feudal concepts. In the <<43>> main, they are to be traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern international law.(36)
The argument that Indians stood in the way of civilization and that progress demanded that they be pushed from the lands they claimed, fell as lightly from the lips of 16th century pirates and conquistadores as it does from those of the 20th century. The contrary suggestion, first advanced by Vitoria, a university professor at Salamanca, that Indians were human beings and that their land titles were entitled to respect even when not graced by seals and ribbons, was denounced as "long haired idealism" by "practical minded" men in the 16th century, as it is today. But. in the long run, this idealistic and supposedly impractical concept of human rights helped to build the greatest state and the strongest economy in the world. The conquistadores and pirates of 16th century Spain and their lawyer spokesmen, in attempting to justify a wholesale seizure of Indian lands in the New World, urged that Indians were heretics, tainted with mortal sin, and irrational. To this argument Vitoria replied that even heretics and sinners were entitled to own property and could not be punished for their sins without trial, and that the Indians were at least as rational as some of the people of Spain. Vitoria cites as precedents, in support of Indian property rights, cases of heretics and sinners in Europe and in ancient Palestine whose rights were acknowledged by the highest Church authorities. Implicit in the argument is the doctrine that certain basic rights inhere in men as men not by reason of their race, creed, or color, but by reason of their humanity.
To the argument that the Pope had given Indian lands to the Kings of Spain and Portugal, Vitoria replied that the Pope had "no temporal power over Indian aborigines" (De Indis II, 6). Thus a division of the New World by the Pope could serve only as an allocation of zones for trading and proselytizing purposes, not as a distribution of land (De Indis III, 10).
The shibboleth of "title by discovery" Vitoria disposes of sum-<<44>>marily. Discovery gives title to lands not already possessed. But as the Indians "were true owners, both from the public and the private standpoint," the discovery of them by the Spaniards had no more effect on their property than the discovery of the Spaniards by the Indians had on Spanish property.(37)
The doctrine of Vitoria was given papal support in 1537 by the Bull Sublimis Deus, in which Pope Paul III proclaimed:
"We, who, though unworthy, exercise on earth the power of our Lord and who seek with all our might to bring those sheep of His flock who are outside, into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, we define and declare by these our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect."
Almost word for word, this declaration of human rights is re-echoed in the first important law of the United States on Indian relations, the Northwest Ordinance of 1787, adopted two years before the Federal Constitution.(38)
Vitoria's doctrine of respect for Indian possessions became the guiding principle of Spain's Laws of the Indies; the parallel promise of the Northwest Ordinance became the guiding principle of our Federal Indian law.(39) Conquistadores, pirates, and even administrative officials sworn to obey the law have not always adhered to this high principle. But if the principle of respect for Indian possessions has not been applied at 100 percent of its face value, it has been applied at least to the extent that $800,-<<45>>000,000.00 or so of Federal funds has so far been appropriated for the purchase of Indian lands. To pay .$800.000,000.00 for a principle is not a common occurrence in the world's history, but in the long run this impractical "long haired" expenditure has probably proved the wisest investment the United States ever made.
Fair dealing by the Federal Government cemented the loyalty of Indians to the United States, a loyalty which has been an important factor in every war we have fought, and as well in all our years of peace. Fair dealing by the Federal Government assuaged the outrages committed on Indians by their neighbors(40) and helped to preserve a people who, without Federal protection, might have succumbed to the rapacity of European civilization. Each year Indian contributions to our economy run to many times the amount we have paid the Indians for their lands, and the Indian contribution to our economy and our American way of life is far from being exhausted. Though we owe to the Indian many of our sports, recreations, highways, drugs, food habits, and political institutions,(41) and most of our agricultural staples,(42) we have still to acquire from the Indian many skills and intangible resources that would be lost forever if Indian cultures were forthwith destroyed, as many chauvinists advocate.(43)
It is against this historical background of fact and doctrine that the cases on Indian title must be viewed if they are to be understood. Only against such a background is it possible to distinguish between those cases that mark the norms and patterns of our national policy and those that illustrate the deviations and pathologies resulting from misunderstanding and corruption. It <<46>> is perhaps inevitable that any high ideal should prove too hard to live by in times of stress, but when a principle has survived the stresses of many wars, financial panics, and outbreaks of chauvinism, it becomes important to distinguish the basic principle from the "scattering" forces, just as it becomes important to distinguish in physics between the principle of gravitation and the deflecting forces of air friction, air pressure, terrestrial motion, etc., that make some bodies drop slantwise or rise instead of dropping. Indeed, it is only with some understanding of the norms of institutional conduct that one can determine whether the norms of the past are continuing to exert their influence, or whether the deviations of yesterday will be the norms of tomorrow.
IV. The Cases.
The cases on original Indian title show the development across twelve decades of a body of law that has never rejected its first principles. The law of Indian title is thus particularly susceptible to historical analysis. Ten cases fix its outlines.
1. The Sovereign's Title: Johnson v. Mcintosh.(44)
The first important Indian case decided by the Supreme Court established the proposition that a private individual claiming title to land by reason of a private purchase from an Indian tribe not consented to by the sovereign, could not maintain that title against the United States or its grantees, where the United States had acquired the land in question from the Indians by treaty. The dismissal of the plaintiffs' complaint in this case was not based upon any defect in the Indians' title, but solely upon the invalidity of the Indian deed through which the white plaintiffs claimed title. When the case was decided, the land (on the Wabash River) had not been occupied by Indians for some fifty years. They had received more than $55,000.00 for the land from the original vendees, Moses Franks, Jacob Franks and their associates, they had then sold the same land to the United States,(45) and they had removed from the tract that they had sold. At the time of the Federal grant to the defendants, in 1818, there was no Indian title to encumber the grant. The decision of the court that a private sale of Indian lands not consented to by the sovereign gave the purchaser no valid title against the sovereign, has never been questioned in the years since this decision was rendered, nor has there been any <<47>> successful challenge of the rule which the court then formulated, viz., that Indian title could be extinguished only by, or with the consent of, the Government. Justice Marshall's opinion in the case makes it clear that while the sovereign could extinguish Indian title by treaty or by war, Indian title would not be extinguished by a grant to private parties and that such a grantee would take the land subject to Indian possessory rights.
"* * * the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.
"While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy." (At p. 574.)
It is perhaps Pickwickian to say that the Federal Government exercised power to make grants of lands still in Indian possession as a consequence of its "dominion" or "title." A realist would say that Federal "dominion" or "title" over land recognized to be in Indian ownership was merely a fiction devised to get around a theoretical difficulty posed by common law concepts. According to the hallowed principles of the common law, a grant by a private person of land belonging to another would convey no title. To apply this rule to the Federal Government would have produced a cruel dilemma: either Indians had no title and no rights or the Federal land grants on which much of our economy rested were void. The Supreme Court would accept neither horn of this dilemma, nor would it say, as a modern realist might say, that the Federal Government is not bound by the limitations of common law doctrine and is free to dispose of property that belongs to Indians or other persons as long as such persons are paid for their interests before their possession is impaired. But such a way of putting the matter would have run contrary to the spirit of the times by claiming for the Federal Government a right to disregard rules of real property law more sacred than the Constitution itself. And this theoretical <<48>> dilemma was neatly solved by Chief Justice Marshall's doctrine that the Federal Government and the Indians both had exclusive title to the same land at the same time. Thus a federal grant of Indian land would convey an interest, but this interest would not become a possessory interest until the possessory title of the Indians was terminated by the Federal Government. The Indians were protected. The grantees were protected, -- assuming that the Federal Government went ahead to secure a relinquishment of Indian title. The power of the Federal Government was recognized. And the needs of feudal land tenure theory were fully respected. Even if we are no longer interested in the niceties of theory, the reconciliation of Indian rights and grantee rights which Marshall worked out must command our respect.
2. Indian Title vs. Colony and State: Worcester v. Georgia.(46)
The second great landmark in the law of Indian title is established by Chief Justice Marshall's opinion in Worcester v. Georgia, where the land involved in suit was in the present possession of Indians. The Supreme Court in this case decided that the State of Georgia could not exercise jurisdiction over Indian lands, i.e. that Indian title could not be ignored by a State. The Chief Justice took great care to point out that neither Johnson v. Mcintosh nor any other decision had denied the validity of Indian title, and that the principle of sovereign title by "discovery" was in no way inconsistent with Indian title.
"This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those [Europeans] who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell." (at p. 544)
Much of Chief Justice Marshall's opinion in this case may be dismissed as unnecessary to the decision, and of course, strictly speaking, no opinion or rule is ever logically necessary to any decision.(47) But certainly an important step in the process by which <<49>> the Supreme Court came to its decision in Worcester v. Georgia was the conclusion that when the Crown gave to the Colony of Georgia whatever rights and powers the Crown had in Cherokee lands, this did not terminate or alter the Cherokee Nation's original title, which survived the Crown grant and later became the basis of Cherokee treaties with the Federal Government. The case thus stands squarely for the proposition adumbrated in Johnson v. Mcintosh,(48) that a grant by the sovereign of land in Indian occupancy does not abrogate original Indian title.
3. The Transferability and the Scope of Indian Title: Mitchel v. United States.(49)
Whereas Johnson v. McIntosh had held that an unauthorized Indian sale could not give a title superior to that later obtained by treaty, the case of Mitchel v. United States dealt with the obverse situation where the Indian sale relied upon had been made with the consent of the sovereign. In such case, the Court held, the purchaser from the Indians secured a title superior to any title which the United States could assert. The United States, the Court held, could not acquire from the King of Spain what was not the King's property, and the property of Indians or their grantees could not become royal or government property without formal judicial action.(50) Indian property was no different in this respect from the property of white men:
"* * * One uniform rule seems to have prevailed from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots.
"Subject to this right of possession, the ultimate fee was in the crown and its grantees, which could be granted by the crown or colonial legislatures while the lands remained in possession of the Indians, though possession could not be taken without their consent." (9 Pet. 711, at 745)
What had been conceded, by way of dictum, in Johnson v. McIntosh, namely that Indian title included power to transfer as well as to occupy, is the core of the decision in the Mitchel case.
Finally the Mitchel case clarifies the scope of the rule of re-<<50>>spect for Indian possessions by expressly rejecting the view that such possession extended only to improved lands. Said the Court:
"Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals." (At p. 745.)
4. Indian Title vs. The Sovereign in Louisiana Territory: Choteau v. Molony.(51)
The Choteau case presents facts very similar to those in Johnson v. McIntosh, and reaffirms the holding of that case that one who claims under an unauthorized grant of Indian lands cannot prevail against a grantee whose title is based upon an Indian treaty cession and a subsequent Federal grant. In the Choteau case, however, the plaintiff's invalid grant was not invalid because it lacked government consent. It was invalid because it lacked Indian consent. The Court held that under the Spanish law applicable in the Louisiana Territory the possessory rights of the Fox Tribe of Indians in lands aboriginally occupied by them were such that any grants made by the Spanish Governor would be "subject to the rights of Indian occupancy. They would not take effect until that occupancy had ceased, and whilst it continued it was not in the power of the Spanish Governor to authorize anyone to interfere with it" (p. 239). Thus the case recognizes, as did the Mitchel case, that even a king cannot lawfully take possession of Indian lands without Indian consent.
5. Indian Titles vs. Homesteaders: Holden v. Joy.(52)
The contention that Indian lands are public lands subject to disposition as such, a contention which the Court had squarely rejected in Worcester v. Georgia, Mitchel v. United States, and Choteau v. Molony, was again made, in a somewhat novel guise, in Holden v. Joy, and was again rejected by the Court. In this case the defendant, Joy, claimed under certain Indian treaties, while the plaintiff, Holden, claimed under preemption acts of Congress. On behalf of the plaintiff's claim it was argued that the Constitution expressly vests in Congress control over public property and that a series of treaties made by the President and Senate with Indian tribes could not constitutionally dispose of public land to the de-<<51>>fendant in a manner that conflicted with modes of public land disposition prescribed by Congress and availed of by the plaintiff. The Court, in rejecting that argument, and holding for the defendant, pointed out that the occupancy right in the land in question had been in the Indians from the start and was therefore clearly subject to disposition by Indian treaties.
In upholding the Indian title as a proper subject of treaty-making, the Court characterized aboriginal title in these terms:
"Enough has already been remarked to show that the lands conveyed to the United States by the treaty were held by the Cherokees under their original title, acquired by immemorial possession, commencing ages before the New World was known to civilized man. Unmistakably their title was absolute, subject only to the pre-emption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as such successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs." (At p. 244.)
6. Indian Title and Railroad Grants: Buttz v. Northern Pacific Railroad.(53)
Buttz v. Northern Pacific R.R. is the first of the railroad grant cases in which the principles enunciated in Johnson v. McIntosh and Worcester v. Georgia were applied to the transcontinental railroads that sought passage across Indian lands. Notwithstanding the vital importance of these railroads for the expanding national economy, and the strong legislative backing which the railroads commanded, Congress when it gave millions of acres of public land to the railroads in aid of construction scrupulously respected Indian possessions, whether or not such possessions had been defined by treaty or act of Congress. The statutory grant in the Buttz case,(54) safeguarded Indian rights in these words:
"The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the said Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the [road] named in this bill." Other railroad grants even went so far as to provide expressly that such extinguishment of Indian title should he effected only by "voluntary cession."(55)
The interpretation of these grants in the Buttz case and suc-<<52>>ceeding cases adhered to the principle that while a grant of land in Indian possession may convey a legal fee, such a grant does not impair the Indian title, which the grantee must respect until it has been duly terminated by treaty, agreement, or other authorized action of Congress or the Indians. Applying this rule in the Buttz case meant that the title originally conveyed to the railroad by the Congressional grant of 1864 and perfected by Indian relinquishment of the land in 1873, for an agreed compensation, prevailed over a settler's preemption title under the act of September 4, 1841, 5 Stat. 453, alleged to have been perfected by actual settlement in 1871. The basis of the Court's decision lay in the determination that "At the time the act of Ju1y 2, 1864, was passed the title of the Indian tribes was not extinguished" (at p. 66), that this was still the situation in 1871, and that, "The grant conveyed the fee subject to this right of occupancy" (ibid.).
It is to be noted that the Indians' right of occupancy in 1864 had not yet been defined by any treaty. In 1867 a reservation was set aside for the Indians involved, but the Court noted that this did not of itself wipe out aboriginal possessory rights outside of the reservation. The aboriginal Indian title in the area involved in the Buttz case never was defined in any treaty or agreement until the agreement of 1873 by which the land was ceded to the United States. The Buttz case stands, therefore, as a clear warning that neither settlers nor railroads can ignore aboriginal Indian title.
7. Individual Indian Titles vs. The Railroads: Cramer v. United States.(56)
The Cramer case, which has already been discussed,(57) is important in the development of the law of Indian title in two respects: (1) it establishes the proposition that individual and tribal possessory rights are entitled to equal respect, and (2) it qualifies the suggestion in the Buttz case (at p. 71) that "Indians having only a right of occupancy" do not have such "claims and rights" as suffice to exclude lands entirely from a public grant.(58) In the Buttz case this dictum was entirely justified since the grant act in question provided that the Indian possession should not be disturbed by a grant of naked legal title. But where, as in the Cramer case, there was no such express guaranty, the only way to protect <<53>> the Indian title was to hold that land trader Indian title was wholly excluded from the grant. And this the Court did. Taken together, the Buttz and Cramer cases hold that Indian title survives a railroad grant, either as an encumbrance upon the grant (Buttz) or as an exception carved out of it (Cramer). In either case the grantee cannot interfere with the Indian title.
8. The Scope of Indian Title: United States v. Shoshone Tribe.(59)
Whether original Indian title comprises all elements of value attached to the soil or whether such title extends only to such surface resources as the Indians knew and used was the central question decided in the Shoshone case. While the case involved a treaty, the treaty was silent on the question of whether the "lands" which were reserved to the Indians included the timber upon, and the minerals below, the surface. The argument of the case therefore turned primarily on the extent of the Indian tenure prior to the treaty. The Government, represented by Solicitor General (now Mr. Justice) Reed, argued that the Shoshones had a mere right of occupation, which was "limited to those uses incident to the cultivation of the land and the grazing of livestock," and that the Government had an "absolute right to reserve and dispose of the [other] resources as its own."(60) This view was further developed in the Government's main brief, signed by Solicitor General (now Mr. Justice) Jackson, urging that original Indian title was something sui generis, comprising only a "usufructuary right," and that such right "to use and occupy the lands did not include the ownership of the timber and mineral resources thereon."(61) This view was considered and rejected by the Court, Mr. Justice Reed dissenting.(62) The Court took the view that original Indian title included every element of value that would accrue to a non-Indian landowner. It concluded that the treaty did not cut down the scope of the title of the Indians, "undisturbed possessors of the soil from time immemorial," and declared:
"For all practical purposes, the tribe owned the land. * * * The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee. * * *
* * * * *
"Although the United States retained the fee, and the tribe's right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute title. Cherokee Nation v. Georgia, 5 Pet. 1, 48. Worcester v. Georgia, supra, 580. Subject to the conditions imposed by the treaty, the Shoshone Tribe had the right that has always been understood to belong to Indians, undisturbed possessors of the soil from time immemorial." (At pp. 116-117).
At the same session of court the Supreme Court applied the identical rule, in the case of the Klamath Indians,(63) to Indian ownership of timber. The Klamath and Shoshone cases, taken together, overturned prevailing views as to the ownership of timber on Indian reservations. Earlier decisions of the Supreme Court in United States v. Cook,(64) and Pine River Logging Co. v. United States,(65) to the effect that the Federal Government could replevin logs sold without authority or recover the value thereof, had been widely misconstrued as a denial of Indian rights to timber.(66) When this misinterpretation was set at rest in the Shoshone and Klamath cases, Congress ordered that the proceeds of the judgment in the Pine River case, which had been deposited to the credit of the Government, should be transferred to the credit of the Indians.(67) These two decisions delivered a death blow to the argument that aboriginal ownership extends only to products of the soil actually utilized in the stone age culture of the Indian tribes.
9. Indian Title vs. Administrative Officials: United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Co.(68)
The main facts and the issues of the Walapai case have already been noted.(69) The significance of the case in the development of the law of Indian title lies not in the recognition that Indian title does not depend upon treaties nor even in the fact that the doctrine of original Indian title was applied to the Mexican cession area -- both principles are established in earlier decisions, e.g. in the Cramer case. More important is the fact that the aboriginal occupancy of an Indian tribe was here held to have survived a course <<55>> of congressional legislation and administrative action that had proceeded on the assumption that the area in question was unencumbered public land. The decision thus stands as a warning to purchasers of real property from the Federal Government, reminding them that not even the Government can give what it does not possess.
10. Indian Title vs. The Federal Government: United States v. Alcea Band ot Tillamooks.(70)
The last large gap in the doctrine of original Indian title was filled in by the Supreme Court's decision in the Alcea case, holding that the Federal Government was bound to pay the Indians when it took from them lands which they held under aboriginal ownership.(71) While the disagreements that split the Court three ways in its opinion-writing make it dangerous to rely on anything the Court said in this case, the fact stands out that the United States, after taking land, by Congressional act, from Indians who had nothing more than an unrecognized aboriginal title to it, was required, by a five to three vote of the Supreme Court, to pay the Indians the value of the land so taken. Certainly it can make no difference to the Indians in the case whether, as Justice Black thought, they are to be paid because Congress passed a jurisdictional act allowing them to bring suit, or, as the four other justices in the majority thought, and as the Court of Claims thought, because the action of Congress a century ago established a liability which only came before the Court for adjudication in 1947. The question of whether rights depend upon remedies or vice versa is a metaphysical issue on which lawyers have disagreed for at least two thousand years, and it is scarcely likely that unanimity will be reached in the next two thousand years. As long as the Indian gets paid for aboriginal holdings that the Government takes from him, he will not quibble about the reasons assigned for the decision.(72)
The difference between Justice Black's formulation of the rule of liability and that of the other four justices of the majority is not likely to affect any actual decisions.(73) The Indian Claims Act of August 13, 1946(74) establishes a special forum to hear Indian claims and among the claims assigned to this forum for determination are claims based upon a taking of land held under original Indian title.(75) The same act also provides for future determination of similar claims by the Court of Claims.(76) Since all five members of the majority in the Alcea case agreed that the combination of (1) an uncompensated taking, and (2) a proper jurisdictional act, jointly, provided a basis for recovery, and since the second condition has been satisfied by general legislation, it follows that, under the Alcea decision, if there has been an uncompensated taking, a recovery may now be had. For reasons already noted, the areas within which such recoveries may be had are nowhere near as great as has been commonly supposed, even by some of the Supreme Court justices when they comment upon matters not of record in the case before them.(77)
The Alcea case gives the final coup de grace to what has been <<57>> called the "menagerie" theory of Indian title,(78) the theory that Indians are less than human and that their relation to their lands is not the human relation of ownership but rather something similar to the relation that animals bear to the areas in which they may be temporarily confined. The sources of this "menagerie" theory are many and varied and sometimes elegantly pedigreed. There is the feudal doctrine, which has seldom been heard in this country for a century or so except in Indian cases, that ultimate dominion over land rests in the sovereign. There is the echoing of a doctrine that taking land from another nation by the sword creates no justiciahle rights -- a doctrine that might have been proper enough when the United States was waging war or making treaties with the various Indian tribes, but is hardly relevant to the contemporary scene, when all Indians are citizens and when Congress has provided that these citizens should be fully compensated for confiscated lands that they would own today if the Federal Government had carried out the "fair and honorable dealings" that it first pledged in 1787.
There are other subtler sources of the "menagerie" theory of Indian reservations which are seldom set forth in legal briefs but exert a deep influence on public administration. One of the most insidious of these is the doctrine that the only good Indian is a dead Indian, whence it follows, by frontier logic, that the only good Indian title is one that has been extinguished, through transfer to a white man or a white man's government. And finally there is the more respectable metaphysical doctrine that since government is the source of all rights there are no rights against the Government, from which it may be deduced that Indians who have been deprived of their possessions by governmental action are without redress. All these doctrines, it may be hoped, have been finally consigned to the dust bins of history by the course of decisions of the Supreme Court that cumulates in the Alcea case.
That course of decisions now fully justifies the statement made by President Truman some months before the Alcea decision was handed down, on the occasion of his signing the Indian Claims Act on August 13, 1946:
"This bill makes perfectly clear what many men and women, here and abroad, have failed to recognize, that in our transactions with the Indian tribes we have at least since the Northwest Ordinance of 1787 set for ourselves the standard of fair and honorable dealings, pledging respect for all Indian property rights. <<58>> Instead of confiscating Indian lands, we have purchased from the tribes that once owned this continent more than 90 per cent of our public domain, paying them approximately 800 million dollars in the process. It would be a miracle if in the course of these dealings -- the largest real estate transaction in history -- we had not made some mistakes and occasionally failed to live up to the precise terms of our treaties and agreements with some 200 tribes. But we stand ready to submit all such controversies to the judgment of impartial tribunals. We stand ready to correct any mistakes we have made."
1. The views herein expressed are only those of the writer and do not necessarily reflect the views of any Government department or agency. F.S.C.
2. Associate Solicitor and Chairman, Board of Appeals, U.S. Department of Interior; Visiting Lecturer, Yale Law School.
3. United States as Guardian of the Hualpai Indians v. Santa Fe Pacific R.R., (1941) 314 U.S. 339; United States v. Alcea Band of Tillamooks, (1946) 329 U. S. 40.
4. Jones v. Meehan, (1899) 175 U.S. 1.
5. Joint Resolution of August 4, 1894, 28 Stat. 1018.
6. By Section 9 of the Treaty of October 2, 1863; 13 Stat. 667, 671.
7. The Interior lease of 1894 had the approval of all the descendants of Moose Dung the Elder, but the Court considered this irrelevant, on the ground that the Interior Department had no authority to disregard tribal customs on questions of inheritance and that, according to Chippewa custom, the eldest son took the band and had full power to dispose of its use. The Court quoted with approval (at p. 31) the comment of Justice Brewer (then Circuit Judge) in a somewhat similar case, that the Secretary of the Interior "had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to divest the owner of his title without his knowledge or consent." Richardville v. Thorp, (C.C., D. Kans., 1866) 28 Fed. 52, 53.
8. (1923) 261 U.S. 219.
9. Act of July 25, 1866, 14 Stat. 239.
10. Act of February 20, 1925, 43 Stat. 954.
11. See letters and resolutions of Indian Rights Association and other organizations printed in Walapai Papers, (1936) Sen. Doc. No. 273, 74th Cong., 2d sess., at pp. 251, 254-271, 308-315.
12. See Opinion of E.C. Finney, Solicitor of the Department of the Interior, dated September 16, 1931, and letter of Assistant Attorney General Richardson, dated Nov. 12, 1931, printed in Walapai Papers, supra note 9, at pp. 319-327.
13. Brief for the State of Arizona, et al., p. 2.
14. Treaty of Guadalupe Hidalgo, February 2, 1848, 9 Stat. 922.
15. Cited supra note 1.
16. Some of the material in this section appears in "How We Bought the United States," Collier's, Jan. 19, 1946, pp. 23, 62, 77, and in an adaptation thereof in This Month, May, 1946, pp. 106-110.
17. This discrepancy between common opinion and historic fact was commented upon by Thomas Jefferson:
"That the lands of this country were taken from them by conquest, is not so general a truth as is supposed. I find in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country; and many more would doubtless be found on further search. The upper country, we know, has been acquired altogether by purchases made in the most unexceptional form." (Thomas Jefferson, "Notes on the State of Virginia, 1781-1785," reprinted in Padover, The Complete Jefferson, (1943) p. 632.)
18. The Treaty of April 30, 1803, for the cession of Louisiana. provided: "Art. III. The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
"Art. VI. The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon."
19. "Indian reservations" acquired their name from the fact that when Indians ceded land they commonly made "reservations" of land to be retained in Indian ownership. This practice goes back at least to 1640, when Uncas, the Mohican chief, deeded a large area to the Colony of Connecticut, out of which he carved a reservation for himself and his tribe. See 1 Trumbull, History of Connecticut, (1818) p. 117.
20. Act of May 18, 1928, 45 Stat. 602.
21. The most significant exception is Alaska, where the Federal Government has not yet acquired any land from any of the native tribes. Cf. Miller v. United States, (C.C.A. 9th, 1947) 159 F. (2d) 997. Other areas for which no compensation appears to have been made are found in Southeastern California, Southern Nevada, Arizona and New Mexico, See Frontispiece to 4th ed. of Cohen, Handbook of Federal Indian Law (1945).
22. The Report of the Commissioner of Indian Affairs for 1872 contains the following illuminating comments:
"Such being the right of the Indians to the soil, the United States for more than eighty-five years pursued a uniform course of extinguishing the Indian title only with the consent of those Indian tribes which were recognized as having claim by reason of occupancy: such consent being expressed in treaties, to the formation of which both parties approached as having equal rights of initiative, and equal rights in negotiation. These treaties were made from time to time (not less than 372 being embraced in the General Statutes of the United States) as the pressure of white settlements or the fear or the experience of Indian hostilities made the demand for the removal of one tribe after another urgent imperative. Except only in the case of the Indians in Minnesota, after the outbreak of 1862, the United States Government has never extinguished an Indian title as by right of conquest; and in this latter case the Government provided the Indians another reservation, besides giving them the proceeds of the sales of the lands vacated by them in Minnesota. So scrupulously up to that time had the right of the Indians to the soil been respected, at least in form. It is not to be denied that wrong was often done in fact to tribes in the negotiation of treaties of cession. The Indians were not infrequently overborne or deceived by the agents of the Government in these transactions; sometimes, too, unquestionably, powerful tribes were permitted to cede lands to which weaker tribes had a better claim, but, formally at least, the United States accepted the cession successively of all lands to which Indian tribes could show color of title, which are embraced in the limits of any of the present States of the Union, except California and Nevada. Up to 1868, moreover, the greater portion of the lands embraced within the present Territories of the United States, to which Indians could establish a reasonable claim on account of occupancy, had also been ceded to the United States in treaties formally complete and ratified by the Senate
* * * * *
"This action of Congress [terminating the process of making treaties with Indian tribes] does, however, present questions of considerable interest and of much difficulty, viz: What is to become of the rights of the Indians to the soil, over portions of territory which had not been covered by treaties at the time Congress put an end to the treaty system? What substitute is to be provided for that system, with all its absurdities and abuses? How are Indians, never yet treated with. but having every way as good and as complete rights to portions of our territory as had the Cherokees, Creeks, Choctaws, and Chickasaws, for instance, to the soil of Georgia, Alabama. and Mississippi, to establish their rights? How is the Government to proceed to secure their relinquishment of their lands, or to determine the amount of compensation which should be paid therefor? Confiscation, of course, would afford a very easy solution for all difficulties of title, but it may fairly be assumed that the United States Government will scarcely he disposed to proceed so summarily in the face of the unbroken practice of eighty-five years, witnessed in nearly four hundred treaties solemnly ratified by the Senate. not to speak of the two centuries and a half during which the principal nations of Europe, through all their wars and conquests, gave sanction to the rights of the aborigines.
"The limits of the present report will not allow these questions to be discussed; but it is evident that Congress must soon, if it would prevent complications and unfortunate precedents, the mischiefs of which will not be easily repaired, take up the whole subject together, and decide upon what principles and by what methods the claims of Indians who have not treaty relations with the Government, on account of their original interest to the soil, shall be determined and adjusted * * *."
23. In addition to the items listed above, items commonly listed in the earliest treaties are: flints, scissors, sugar, clothing, needles and hoes. Later treaties commonly mention horses, cattle, hogs, sheep, farm implements, looms, sawmills, flour mills, boats, and wagons.
24. New Project of Freedoms and Exemptions, Article 27, reprinted in Royce, Indian Land Cessions in the United States (18th Annual Report, U.S. Smithsonian Institute, 1900) p. 577.
25. This refrain is still heard in remote mining towns of Arizona and in Alaska, particularly among survivors of the Alaskan Gold Rush, who knew what to do when they saw an Indian.
26. Worcester v. Georgia, (1833) 6 Pet. 515.
27. Greeley, American Conflict (1864), vol. 1, p. 106.
28. Treaty of November 11, 1794, 7 Stat. 44.
29. Treaty of December 29, 1835, 7 Stat. 478.
30. The total expenditures of the Federal Government in 1835 amounted to 17.6 million dollars. See Report of Secretary of the Treasury (1946), p. 366.
31. Act of April 21, 1904, 33 Stat. 189, 195.
32. For many decades such cases were tried under special jurisdictional acts. By the act of August 6, 1946, all existing tribal claims against the Government were referred to a special Indian Claims Commission, and jurisdiction was granted to the Court of Claims to hear and decide all future tribal claims. See 60 Stat. 1049, 25 U.S.C.A. (1946 Supp.) 70, 28 U.S. C. A. (1946 Supp.) 259a.
33. United States v. Shoshone Tribe. (1938) 304 U.S. 111.
34. United States v. Klamath Indians, (1938) 304 U.S. 119.
35. Padilla, Free Men of America (1943) 71.
36. James Brown Scott, former Solicitor for the Department of State and President of the American Institute of Law, the American Society of International Law, and the Institut de Droit International, in his brochure on The Spanish Origin of International Law (1928), comments: "In the lecture of Vitoria on the Indians, and in his smaller tractate on War, we have before our very eyes, and at hand, a summary of the modern law of nations." The Seventh Pan-American Conference, on December 23, 1943, acclaimed Vitoria as the man "who established the foundations of modern international law."
37. De lndis II, 7. Cf. Marshall, C. J., in Worcester v. Georgia, (1812) 6 Pet. 515: "It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors." (At p. 543.)
38. See supra p. 41.
39. See F.S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States. (1942) 31 Geo. Law Jr. 1.
40. "Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies." United States v. Kagama, (1886) 118 U.S. 375, 384. Denial of the right of Indians to vote and receive social security benefits is found today only in the two states most recently admitted to the Union, Arizona and New Mexico. Efforts of the Federal Government to end these discriminations have met much local hostility, as have Federal efforts to protect native land rights in Alaska where the frontier spirit still prevails.
41. See the essay of Lucy M. Kramer on "Indian Contributions to American Culture," in Indians Yesterday and Today, (U.S. Dept. of Interior, 1941).
42. It has been estimated by competent authorities that four-sevenths of the total agricultural production in the United States (in farm value) consists of plants domesticated by Indians and taken over by whites, and it has been noted that where the whites took over plants they also took over Indian method of planting, irrigation, cultivation, storage, and use. See Edwards, Agriculture of the American Indian, (U.S. Dept. of Agriculture, 1933) p. v.; Bureau of American Ethnology Bulletin No. 30, vol. 1, p. 25.
43. The 1890 Census Report on Indians, at p. 57, shows the high-water mark of such chauvinism. See F.S. Cohen, "Indian Claims," (1945) The American Indian, vol. 2, No. 3, pp. 4-5.
44. (1923) 8 Wheat. 543.
45. Treaty of August 3, 1795, 7 Stat. 49; Treaty of June 7, 1803, Stat. 74.
46. (1932) 6 Pet. 515.
47. See F. S. Cohen, Ethical Systems and Legal Ideals, (1933) 34-35.
48. (1823) 8 Wheat. 543, at 591.
49. (1835) 9 Pet. 711.
50. "If the king has no original right of possession to lands, he cannot acquire it without office found, so as to annex it to his domain." 9 Pet. at 743.
51. (1853) 16 How. 203.
52. (1872) 17 Wall. (84 U.S.) 211.
53. (1886) 119 U.S. 55.
54. Act of July 2, 1864, 13 Stat. 365, sec. 2.
55. Act of July 27. 1866, 14 Stat. 292, construed in United States v. Santa Fe Pacific Ry. Co., (1941) 314 U.S. 339, considered supra note 1.
56. (1923) 261 U.S. 219.
57. See supra pp. 29-31.
58. This dictum provided the main line of argument for the railroad in the Cramer case. See 261 U.S. 219, 220.
59. (1938) 304 U.S. 111.
60. Brief for United States on petition for certiorari.
61. Brief for United States, pp. 7-24.
62. While Mr. Justice Reed was the sole dissenter from the decision in the Shoshone case, he was joined by Justices Burton and Rutledge in a more recent dissent, involving substantially the same contention that Indians are "like paleface squatters on public lands without compensable rights if they are evicted." United States v. Tillamooks. (1946) 329 U.S. 40, 58.
63. United States v. Klamath Indians, (1938) 304 U.S. 119; same case, (1935) 296 U.S. 244.
64. (1873) 19 Wall. 591.
65. (1902) 186 U.S. 279.
66. See 29 Op. Att'y Gen. 239 (1911). And see F. S. Cohen, Handbook of Federal Indian Law, pp. 313-316. The Government's brief in the Shoshone case, incorporated by reference in its Klamath brief, placed chief reliance upon this interpretation of the Cook and Pine River Logging Co. cases. 65. Act of June 5, 1938. 52 Stat. 688. 66. (1941) 314 U.S. 339. 67. See supra pp. 31-33.
67. Act of June 5, 1938. 52 Stat. 688.
68. (1941) 314 U.S. 339.
69. See supra. pp. 31-34.
70. (1946) 329 U.S. 40, aff'g (1945) 103 Ct. Cls. 494, 59 F.Supp. 934.
71. That no such liability arises when land not subject to original Indian title is set aside temporarily for Indian use and then restored to the public domain is the holding of two recent cases. Sioux Tribe v. United States, (1942) 316 U.S. 317; Ute Indians v. United States, (1947) 330 U.S. 169. The language and circumstances of the Executive orders setting up Indian reservations vary so widely that generalizations from cases interpreting such orders are of little value. See F. S. Cohen, Handbook of Federal Indian Law, pp. 299-302.
72. The meaning of the decision, from the standpoint of actual administration, is thus set forth in the statement of Commissioner of Indian Affairs William A. Brophy:
"The Supreme Court has now held original Indian title -- even though not accompanied by notary seals and ribbons -- is as good as any white man's title. It is good against the United States as well as again third parties. Under recent legislation opening the courts to Indian grievances, the Indians are held entitled to recover the value of any land that has been taken away from them by the Government. This means the end of a long-standing discrimination which made Indian land in the old days a prey to all sorts of land-grab schemes and denied the Indians any redress or compensation. It is the duty of all employees of the Office of Indian Affairs to see that Indian land ownership is respected to the same degree as any other form of land ownership. As the Supreme Court has said, whether a tract of land 'was properly called a reservation . . . or unceded Indian country . . . is a matter of little moment . . . the Indians' right of occupancy has always been held to be sacred; something not to be taken from him except by his consent, and then only upon such consideration as should be agreed upon.'"
73. It did affect the decision in Northwestern Bands of Shoshone Indians v. United States, (1945) 324 U.S. 335. There a majority of file Court thought that the jurisdictional act did not authorize a suit based on aboriginal title. A four-way split in the Court produced an affirmance of the decision of the Court of Claims below, denying recovery. The limitations of the Shoshone jurisdictional act have now been superseded by the Indian Claims Act, which was passed, very largely, to overcome the injustices which resulted from the Shoshone decision, injustices pointed out by two of the justices (Black and Jackson, JJ.) voting with the majority in that case. The Senate and House Committees which asked the Supreme Court to allow the Indians a rehearing in this case, and were refused, saw to it that the Indian Claims Act allowed such rehearings in all cases heretofore dismissed for jurisdictional reasons. See F. S. Cohen, "Indian Claims," (1945) Amer. Indian, vol. 2, No. 3, p. 3. And see K. J. Selander, Section 2 of the Indian Claims Commission Act, (1947) 15 Geo. Wash. L. Rev. 388, 422.
74. (1946) 60 Stat. 1049, 25 U.S. C. A. (1946 Supp.) 70.
75. See sec. 2, 60 Stat. 1049, 1050, 25 U.S. C. A. (1946 Supp.) 70a.
76. See sec. 24, 60 Stat. 1049, 1055, 28 U.S. C. A. (1946 Supp.) 259a.
77. See note 13 supra.
78. See F.S. Cohen. Handbook of Federal Indian Law, p. 288.
Charles the Second By the grace of God King of England Scotland France and Ireland defender of the faith &c
To All to whome these presentes shall come greeting
Whereas Our Deare and entirely Beloved cousin Prince Rupert Count Palatyne of the Rhyne Duke of Bavaria and Cumberland &c Christopher Duke of Albemarle William Earle of Craven Henry Lord Arlington Anthony Lord Ashley Sir John Robinson and Sir Robert Vyner Knightes and Baronettes Sir Peter Colliton Baronett Sir Edward Hungerford Knight of the Bath Sir Paul Neele Knight Sir John Griffith and Sir Phillipp Carteret Knightes James Hayes John Kirke Francis Millington William Prettyman John Fenn Esquires and John Portman Cittizen and Goldsmith of London have at theire owne great cost and charge undertaken an
Expedicion for Hudsons Bay in the North west part of America for the discovery of a new Passage into the South Sea and for the finding some Trade for Furrs Mineralls and other considerable Commodityes and by such theire undertaking have already made such discoveryes as doe encourage them to proceed further in pursuance of theire said designe by meanes whereof there may probably arise very great advantage to us and our Kingdome
And whereas the said undertakers for theire further encouragement in the said designe have humbly besought us to Incorporate them and grant unto them and theire successors the sole Trade and Commerce of all those Seas Streightes Bayes Rivers Lakes Creekes and Soundes in whatsoever Latitude they shall bee that lye within the the entrance of the Streightes commonly called Hudsons Streightes together with all the Landes Countryes and Territoryes upon the Coastes and Confynes of the Seas Streightes Bayes Lakes Rivers Creekes and Soundes aforesaid which are not now actually possessed by any of our Subjectes or by the Subjectes of any other Christian Prince or State
Now know yee that Wee being desirous to promote all Endeavours tending to the publique good of our people and to encourage the said undertaking have of our especiall grace certaine knowledge and meere mocion Given granted ratifyed and confirmed And by these Presentes for us our heires and Successors
Doe give grant ratifie and confirme unto our said Cousin Prince Rupert Christopher Duke of Albemarle William Earle of Craven Henry Lord Arlington Anthony Lord Ashley Sir John Robinson Sir Robert Vyner Sir Peter Colleton Sir Edward Hungerford Sir Paul Neile Sir John Griffith and Sir Phillipp Carterett James Hayes John Kirke Francis Millington William Prettyman John Fenn and John Portman That they and such others as shall bee admitted into the said Society as is hereafter expressed shall bee one Body Corporate and Politique in deed and in name by the name of the Governor and Company of Adventurers of England tradeing into Hudsons Bay and them by the name of the Governor and Company of Adventurers of England tradeing into Hudsons Bay one Body Corporate and Politique in deede and in name really and fully for ever for us our heirs and successors
doe make ordeyne constitute establish confirme and declare by these Presentes and that by the same name of Governor & Company of Adventurers of England Tradeing into Hudsons Bay they shall have perpetuall succession And that they and theire successors by the name of Governor and Company of Adventurers of England Tradeing into Hudsons Bay bee and at all tymes hereafter shall bee persons able and capable in Law to have purchase receive possesse enjoy and reteyne Landes Rentes priviledges libertyes Jurisdiccions Franchyses and hereditamentes of what kinde nature and quality soever they bee to them and theire Successors And alsoe to give grant demise alien assigne and dispose Landes Tenementes and hereditamentes and to doe and execute all and singuler other thinges by the same name that to them shall or may apperteyne to doe And that they and theire Successors by the name of the Governor and Company of Adventurers of England Tradeing into Hudsons Bay may pleade and bee impleaded answeare and bee answeared defend and bee defended in whatsoever Courtes and places before whatsoever Judges and Justices and other persons and Officers in all and singular Accions Pleas Suitts Quarrells causes and demandes whatsoever of whatsoever kinde nature or sort in such manner and forme as any other our Liege people of this our Realme of England being persons able and capable in Lawe may or can have purchase receive possesse enjoy reteyne give grant demise alien assigne dispose pleade defend and bee defended doe permit and execute And that the said Governor and Company of Adventurers of England Tradeing into Hudsons Bay and their successors may have a Common Seale to serve for all the causes and busnesses of them and theire Successors and that itt shall and may bee lawfull to the said Governor and Company and theire Successors the same Seall from tyme to tyme at theire will and pleasure to breake change and to make a new or alter as them shall seeme expedient
And further Wee will And by these presentes for us our Heires and successors
Wee doe ordeyne that there shall bee from henceforth one of the same Company to bee elected and appointed in such forme as hereafter in these presentes is expressed which shall be called The Governor of the said Company And that the said Governor and Company shall or may elect seaven of theire number in such forme as hereafter in these presentes is expressed which shall bee called the Committee of the said Company which Committee of seaven or any three of them together with the Governor or Deputy Governor of the said Company for the tyme being shall have the direcion of the Voyages of and for the said Company and Provision of the Shipping and Merchandizes thereunto belonging and alsoe the sale of all merchandizes Goodes and other things returned in all or any the Voyages or Shippes of or for the said Company and the mannageing and handleing of all other business affaires and thinges belonging to the said Company
And Wee will ordeyne and Grant by these presentes for us our heires and successors unto the said Governor and Company and theire successors that they the said Governor and Company and theire successors shall from henceforth for ever bee ruled ordered and governed according to such manner and forme as is hereafter in these presentes expressed and not otherwise And that they shall have hold reteyne and enjoy the Grantes Libertyes Priviledges Jurisdiccions and Immunityes only hereafter in these presentes granted and expressed and noe other And for the better
Wee have assigned nominated constituted and made And by these presentes for us our heires and successors
Wee doe assigne nominate constitute and make our said Cousin Prince Rupert to bee the first and present Governor of the said Company and to continue in the said Office from the date of these presentes until the tenth of November then next following if hee the said Prince Rupert shall soe long live and soe until a new Governor bee chosen by the said Company in forme hereafter expressed
And alsoe Wee have assigned nominated and appointed And by these presentes for us our heirs and Successors
Wee doe assigne nominate and constitute the said Sir John Robinson Sir Robert Vyner Sir Peter Colleton James Hayes John Kirke Francis Millington and John Portman to bee the seaven first and present Committees of the said Company from the date of these presentes until the said tenth Day of November then alsoe next following and soe until new Committees shall bee chosen in forme hereafter expressed
And further Wee will and grant by these presentes for us our heires and Successors unto the said Governor and Company and theire successors that itt shall and may bee lawfull to and for the said Governor and Company for the tyme being or the greater part of them present at any publique Assembly commonly called the Court Generall to bee holden for the said Company the Governor of the said Company being alwayes one from tyme to tyme elect nominate and appoint one of the said Company to bee Deputy to the said Governor which Deputy shall take a corporall Oath before the Governor and three or more of the Committee of the said Company for the tyme being well truely and faithfully to execute his said Office of Deputy to the Governor of the said Company and after his Oath soe taken shall and may from tyme to tyme in the absence of the said Governor exercize and execute the Office of Governor of the said Company in such sort as the said Governor ought to doe
And further Wee will and grant and by these presentes for us our heires and Successors unto the said Governor and Company of Adventurers of England tradeing into Hudsons Bay and theire Successors That they or the greater part of them whereof the Governor for the Tyme being or his Deputy to bee one from tyme to tyme and at all tymes hereafter shall and may have authority and power yearely and every yeare betweene the first and last day of November to assemble and meete together in some convenient place to bee appointed from tyme to tyme by the Governor or in his absence by the Deputy of the said Governor for the tyme being And that they being soe assembled itt shall and may bee lawfull to and for the said Governor or Deputy of the said Governor and the said Company for the tyme being or the greater part of them which then shall happen to bee present whereof the Governor of the said Company or his Deputy for the tyme being to bee one to elect and nominate one of the said Company which shall bee Governor of the same Company for one whole yeare then next following which person being soe elected and nominated to bee Governor of the said Company as is aforesaid before hee bee admitted to the Execucion of the said Office shall take a Corporall Oath before the last Governor being his Predecessor or his Deputy and any three or more of the Committee of the said Company for the tyme being that hee shall from tyme to tyme well and truely execute the Office of Governor of the said Company in all thinges concerneing the same and that Ymediately after the same Oath soe taken hee shall and may execute and use the said Office of Governor of the said Company for one whole yeare from thence next following and in like sort Wee will and grant that as well every one of the above named to bee of the said Company or fellowshipp as all other hereafter to bee admitted or free of the said Company shall take a Corporall Oath before the Governor of the said Company or his Deputy for the tyme being to such effect as by the said Governor and Company or the greater part of them in any publick Court to bee held for the said Company shall bee in reasonable and legall manner sett down and devised before they shall bee allowed or admitted to Trade or traffique as a freeman of the said Company
And further Wee will and grant by these presentes for us our heires and successors unto the said Governor and Company and theire successors that the said Governor or Deputy Governor and the rest of the said company and theire successors for the tyme being or the greater part of them whereof the Governor or the Deputy Governor from tyme to tyme to bee one shall and may from tyme to tyme and at all tymes hereafter have power and authority yearely and every yeare betweene the first and last day of November to assemble and meete together in some convenient place from tyme to tyme to bee appointed by the said Governor of the said Company or in his absence by his Deputy and that they being soe assembled itt shall and may bee lawfull to and for the said Governor or his Deputy and the Company for the tyme being or the greater part of them which then shall happen to bee present whereof the Governor of the said Company or his Deputy for the tyme being to bee one to elect and nominate seaven of the said Company which shall bee a Committee of the said Company for one whole yeare from thence next ensueing which persons being soe elected and nominated to bee a Committee of the said Company as aforesaid before they bee admitted to the execucion of theire Office shall take a Corporall Oath before the Governor or his Deputy and any three or more of the said Committee of the said Company being theire last Predecessors and that they and every of them shall well and faithfully performe theire said Office of Committees in all thinges concerneing the same And that imediately after the said Oath soe taken they shall and may execute and sue theire said Office of Committees of the said Company for one whole yeare from thence next following
And moreover Our will and pleasure is And by these presentes for us our heires and successors
Wee doe grant unto the said Governor and Company and theire successors that when and as often as itt shall happen the Governor or Deputy Governor of the said Company for the tyme being at any tyme within one yeare after that hee shall bee nominated elected and sworne to the Office of the Governor of the said Company as is aforesaid to dye or to bee removed from the said Office which Governor or Deputy Governor not demeaneing himselfe well in his said Office
Wee will to bee removable at the Pleasure of the rest of the said Company or the greater part of them which shall bee present at theire publick assemblies commonly called theire Generall Courtes holden for the said Company that then and soe often itt shall and may bee lawfull to and for the Residue of the said Company for the tyme being or the greater part of them within convenient tyme after the death or removeing of any such Governor or Deputy Governor to assemble themselves in such convenient place as they shall think fitt for the eleccion of the Governor or Deputy Governor of the said Company and that the said Company or the greater part of them being then and there present shall and may then and there before theire departure from the said place elect and nominate one other of the said Company to bee Governor or Deputy Governor for the said Company in the place and stead of him that soe dyed or was removed which person being soe elected and nominated to the Office of Governor of Deputy Governor of the said Company shall have and exercize the said Office for and dureing the residue of the said yeare takeing first a Corporall Oath as is aforesaid for the due execucion thereof And this to bee done from tyme to tyme soe often as the case shall soe require
And also Our Will and Pleasure is and by these presentes for us our heires and successors
Wee doe grant unto the said Governor and Company that when and as often as itt shall happen any person or persons of the Committee of the said Company for the tyme being at any tyme within one yeare next after that they or any of them shall bee nominated elected and sworne to the Office of Committee of the said Company as is aforesaid to dye or to be removed from the said Office which Committees not demeaneing themselves well in theire said Office Wee will to be removeable at the pleasure of the said Governor and Company or the greater part of them whereof the Governor of the said Company for the tyme being or his Deputy to bee one that then and soe often itt shall and may bee lawfull to and for the said Governor and the rest of the Company for the tyme being or the greater part of them whereof the Governor for the tyme being or his Deputy to bee one within convenient tyme after the death or removeing of any of the said Committee to assemble themselves in such convenient place as is or shall bee usuall and accustomed for the eleccion of the Governor of the said Company or where else the Governor of the said Company for the tyme being or his Deputy shall appoint And that the said Governor and Company or the greater part of them whereof the Governor for the tyme being or his Deputy to bee one being then and there present shall and may then and there before theire Departure from the said place elect and nominate one or more of the said Company to bee of the Committee of the said Company in the place and stead of him or them that soe died or were or was soe removed which person or persons soe elected and nominated to the Office of Committee of the said Company shall have and exercize the said Office for and dureing the residue of the said yeare takeing first a Corporall Oath as is aforesaid for the due execucion thereof and this to bee done from tyme to tyme so often as the case shall require And to the end the said Governor and Company of Adventurers of England Tradeing into Hudsons Bay may bee encouraged to undertake and effectually to prosecute the said designe of our more especial grace certaine knowledge and meere Mocion
Wee have given granted and confirmed And by these presentes for us our heires and successors
Doe give grant and confirme unto the said Governor and Company and theire successors the sole Trade and Commerce of all those Seas Streightes Bayes Rivers Lakes Creekes and Soundes in whatsoever Latitude they shall bee that lie within the entrance of the Streightes commonly called Hudsons Streightes together with all the Landes and Terriroryes upon the Countryes Coastes and confynes of the Seas Bayes Lakes Rivers Creekes and Soundes aforesaid that are not already actually possessed by or granted to any of our Subjectes or possessed by the Subjectes of any other Christian Prince or State with the Fishing of all Sortes of Fish Whales Sturgions and all other Royall Fishes in the Seas Bays Islets and Rivers within the premisses and the Fish therein taken together with the Royalty of the Sea upon the Coastes with the Lymittes aforesaid and all Mynes Royall as well discovered as not discovered of Gold Silver Gemms and pretious Stones to bee found or discovered within the Territoryes Lymittes and Places aforesaid And that the said Land bee from henceforth reckoned and reputed as one of our Plantacions or Colonyes in America called Ruperts Land
And further We doe by these presentes for us our heires and successors make create and constitute the said Governor and Company for the tyme being and theire successors the true and absolute Lordes and Proprietors of the same Territory lymittes and places aforesaid And of all other the premisses
Saving always the faith Allegiance and Soveraigne Dominion due to us our heires and successors for the same
To have hold possesse and enjoy the said Territory lymittes and places and all and singular other the premisses hereby granted as aforesaid with theire and every of theire Rightes Members Jurisdiccions Perogatives Royaltyes and Appurtenances whatsoever to them the said Governor and Company and theire Successors for ever
To bee holden of us our heires and successors as of our Mannor of East Greenwich in our Country of Kent in free and common Soccage and not in Capite or by Knightes Service
Yeilding and paying yearley to us our heirs and Successors for the same two Elkes and two Black beavers whensoever and as often as Wee our heirs and successors shall happen to enter into the said Countryes Territoryes and Regions hereby granted
And further our will and pleasure is And by these presentes for us our heires and successors
Wee doe grant unto the said Governor and Company and to theire successors that itt shall and may be lawfull to and for the said Governor and Company and theire successors from tyme to tyme to assemble themselves for or about any the matters causes affaires or buisnesses of the said Trade in any place or places for the same convenient within our Dominions or elsewhere and there to hold Court for the said Company and the affaires thereof And that alsoe itt shall and may bee lawfull to and for them and the greater part of them being soe assembled and that shall then and there bee present in any such place or places whereof the Governor or his Deputy for the tyme being to bee one to make ordyne and constitute such and soe many reasonable Lawes Constitucions Orders and Ordinances as to them or the greater part of them being then and there present shall seeme necessary and convenient for the good Government of the said Company and of all Governors of Colonyes Fortes and Plantacions Factors Masters Mariners and other Officers employed or to bee employed in any of the Territories and Landes aforesaid and in any of theire Voyages and for the better advancement and contynuance of the said Trade or Traffick and Plantacions and the same Lawes Constitucions Orders and Ordinances soe made to putt in use and execute accordingly and at theire pleasure to revoake and alter the same or any of them as the occasion shall require And that the said Governor and Company soe often as they shall make ordeyne or establish any such Lawes Constitucions Orders and Ordinances in such forme as aforesaid shall and may lawfully impose ordeyne limitt and provide such paines penaltyes and punishmentes upon all Offenders contrary to such Lawes Constitucions Orders and Ordinances or any of them as to the said Governor and Company for the tyme being or the greater part of them then and there being present the said Governor or his Deputy being alwayes one shall seeme necessary requisite or convenient for the observacion of the same Lawes Constitucions Orders and Ordinances And the same Fynes and Amerciamentes shall and may by theire Officers and Servantes from tyme to tyme to bee appointed for that purpose levy take and have to the use of the said Governor and Company and theire successors without the impediment of us our heires or successors or of any the Officers or Ministers of us our heires or successors and without any accompt therefore to us our heires or successors to bee made All and singuler which Lawes Constitucions Orders and Ordinances soe as aforesaid to bee made Wee will to bee duely observed and kept under the paines and penaltyes therein to bee conteyned soe alwayes as the said Lawes Constitucions Orders and Ordinances Fynes and Amerciamentes bee reasonable and not contrary or repugnant but as neare as may bee agreeable to the Lawes Statutes or Customes of this our Realme
And furthermore of our ample and abundant grace certaine knowledge and meere mocion
Wee have granted and by these presentes for us our heires and successors doe grant unto the said Governor and Company and theire Successors That they and theire Successors and theire Factors Servantes and Agentes for them and on theire behalfe and not otherwise shall for ever hereafter have use and enjoy not only the whole Entire and only Trade and Traffick and the whole entire and only liberty use and priviledge of tradeing and Trafficking to and from the Territory Lymittes and places aforesaid but alsoe the whole and entire Trade and Trafficke to and from all Havens Bayes Creekes Rivers Lakes and Seas into which they shall find entrance or passage by water or Land out of the Territoryes Lymittes or places aforesaid and to and with all the Natives and People Inhabitting or which shall inhabit within the Territoryes Lymittes and places aforesaid and to and with all other Nacions Inhabitting any the Coaste adjacent to the said Territoryes Lymittes and places which are not already possessed as aforesaid or whereof the sole liberty or priviledge of Trade and Trafficke is not granted to any other of our Subjectes And Wee of our further Royall favour And of our more especiall grace certaine knowledge and meere Mocion Have granted and by these presentes for us our heires and Successors doe grant to the said Governor and Company and to theire Successors That neither the said Territoryes Lymittes and places hereby Granted as aforesaid nor any part thereof nor the islandes Havens Portes Cittyes Townes or places thereof or therein conteyned shall bee visited frequented or haunted by any of the Subjectes of us our heires or successors contrary to the true meaneing of these presentes and by vertue of our Perogative Royall which wee will not have in that behalfe argued or brought into Question
Wee streightly Charge Command and prohibitt for us our heires and Successors all the subjectes of us our heires and Successors of what degree or Quality soever they bee that none of them directly or indirectly doe visit haunt frequent or Trade Trafficke or Adventure by way of Merchandize into or from any the said Territoryes Lymittes or Places hereby granted or any or either of them other then the said Governor and Company and such perticuler persons as now bee or hereafter shall bee of that Company theire Agentes Factors and Assignes unlesse itt bee by the Lycence and agreement of the said Governor and Company in writing first had and obteyned under theire Common Seale to bee granted upon paine that every such person or persons that shall Trade or Traffick into or from any the Countryes Territoryes or Lymittes aforesaid other then the said Governor and Company and theire Successors shall incurr our Indignacion and the forfeiture and the losse of the Goodes Merchandizes and other thinges whatsoever which soe shall bee brought into this Realme of England or any the Dominions of the same contrary to our said Prohibicion or the purport or true meaneing of these presentes for which the said Governor and Company shall finde take and seize in other places out of our Dominions where the said Company theire Agentes Factors or Ministers shall Trade Traffick inhabitt by vertue of these our Letters Patente As alsoe the Shipp and Shippes with the Furniture thereof wherein such goodes Merchandizes and other thinges shall bee brought or found the one halfe of all the said Forfeitures to bee to us our heires and successors and the other halfe thereof
Wee doe by these Presentes cleerely and wholly for us our heires and Successors Give and Grant unto the said Governor and Company and theire Successors
And further all and every the said Offenders for theire said contempt to suffer such other punishment as to us our heires or Successors for soe high a contempt shall seeme meete and convenient and not to bee in any wise delivered untill they and every of them shall become bound unto the said Governor for the tyme being in the summe of one thousand Poundes at the least at noe tyme then after to Trade or Traffick into any of the said places Seas Streightes Bayes Portes Havens or Territoryes aforesaid contrary to our Expresse Commandment in the behalfe herein sett downe and published
And further of our more especiall grace
Wee have condiscended and granted And by these presentes for us our heires and Successors doe grant unto the said Governor and Company and theire successors That Wee our heires and Successors will not Grant liberty lycence or power to any person or persons whatsoever contrary to the tenour of these our Letters Patente to Trade trafficke or inhabit unto or upon any the Territoryes lymittes or places afore specifyed contrary to the true meaneing of these presentes without the consent of the said Governor and Company or the most part of them
And of our more abundant grace and favour to the said Governor and Company
Wee doe hereby declare our will and pleasure to bee that if it shall soe happen that any of the persons free or to bee free of the said Company of Adventurers of England Tradeing into Hudsons Bay who shall before goeing forth of any Shipp or Shipps appointed for
A Voyage or otherwise promise or agree by Writeing under his or theire handes to adventure any summe or Sumes of money towardes the furnishing any provision or maintainance of any voyage or voyages sett forth or to bee sett forth or intended or meant to bee sett forth by the said Governor and Company or the more part of them present at any Publick Assembly commonly called theire Generall Court shall not within the Space of twenty Dayes next after Warneing given to him or them by the said Governor or Company or theire knowne Officer or Minister bring in and deliver to the Treasurer or Treasurers appointed for the Company such summes of money as shall have been expressed and sett downe in writeing by the said Person or Persons subscribed with the name of the said Adventurer or Adventurers that then and at all Tymes after itt shall and may bee lawfull to and for the said Governor and Company or the more part of them present
Whereof the said Governor or his Deputy to bee one at any of theire Generall Courtes or Generall Assemblyes to remove and disfranchise him or them and every such person and persons at their wills and pleasures and hee or they soe removed and disfranchised not to bee permitted to trade into the Countryes Territoryes Lymittes aforesaid or any part thereof nor to have any Adventure or Stock goeing or remaining with or amongst the said Company without the speciall lycence of the said Governor and Company or the more part of them present at any Generall Court first had and obteyned in that behalfe Any thing before in these presentes to the contrary thereof in any wise notwithstanding
And Our Will and Pleasure is And hereby wee doe alsoe ordeyne that itt shall and may bee lawfull to and for the said Governor and Company or the greater part of them whereof the Governor for the tyme being or his Deputy to bee one to admitt into and to bee of the said Company all such Servantes or Factors of or for the said Company and all such others as to them or the most part of them present at any Court held for the said Company the Governor or his Deputy being one shall be thought fitt and agreeable with the Orders and Ordinances made and to bee made for the Government of the said Company
And further Our will and pleasure is And by these presentes for us our heires and Successors
Wee doe grant unto the said Governor and Company and to theire Successors that itt shall and may bee lawfull in all Eleccions and By-Lawes to bee made by the Generall Court of the Adventurers of the said Company that every person shall have a number of votes according to his Stock that is to say for every hundred poundes by him subscribed or brought into the present Stock one vote and that any of these that have Subscribed lesse then one hundred poundes may joyne theire respective summes to make upp one hundred poundes and have one vote joyntly for the same and not otherwise
And further of our expeciall grace certaine knowledge and meere mocion
Wee doe for us our heires and successors grant to and with the said Governor and Company of Adventurers of England Tradeing into Hudsons Bay that all Landes Islandes Territoryes Plantacions Fortes Fortificacions Factoryes or Colonyes where the said Companyes Factoryes and Trade are or shall bee within any the Portes and places afore lymitted shall bee ymediately and from henceforth under the power and command of the said Governor and Company theire Successors and Assignes
Saving the faith and Allegiance due to bee performed to us our heires and successors as aforesaid and that the said Governor and Company shall have liberty full Power and authority to appoint and establish Governors and all other Officers to governe them And that the Governor and his Councill of the severall and respective places where the said Company shall have Plantacions Fortes Factoryes Colonyes or Places of Trade within any the Countryes Landes or Territoryes hereby granted may have power to judge all persons belonging to the said Governor and Company or that shall live under them in all Causes whether Civil or Criminall according to the Lawes of this Kingdome and to execute Justice accordingly And in case any crime or misdemeanor shall bee committed in any of the said Companyes Plantacions Fortes Factoryes or Places of Trade within the Lymittes aforesaid where Judicature cannot bee executed for want of a Governor and Councill there then in such case itt shall and may bee lawfull for the chiefe Factor of that place and his Councill to transmitt the party together with the offence to such other Plantacion Factory or Fort where there shall bee a Governor and Councill where Justice may bee executed or into this Kingdome of England as shall bee thought most convenient there to receive such punishment as the nature of his offence shall deserve
And Moreover Our will and pleasure is And by these presentes for us our heires and Successors
Wee doe give and grant unto the said Governor and Company and theire Successors free Liberty and Lycence in case they conceive it necessary to send either Shippes of War Men or Amunicion unto any theire Plantacions Fortes Factoryes or Places of Trade aforesaid for the security and defence of the same and to choose Commanders and Officers over them and to give them power and authority by Commission under theire Common Seale or otherwise to continue or make peace or Warre with any Prince or People whatsoever that are not Christians in any places where the said Company shall have any Plantacions Fortes or Factoryes or adjacent thereunto as shall bee most for the advantage and benefitt of the said Governor and Company and of theire Trade and alsoe to right and recompence themselves upon the Goodes Estates or people of those partes by whome the said Governor and Company shall sustyne any injury losse or dammage or upon any other People whatsoever that shall any way contrary to the intent of these presentes interrupt wrong or injure them in theire said Trade within the said places Territoryes and Lymittes granted by this Charter and that itt shall and may bee lawfull to and for the said Governor and Company and theire Successors from tyme to tyme and at all tymes from henceforth to Erect and build such Castles Fortifications Fortes Garrisons Colonyes Plantacions Townes or Villages in any partes or places within the Lymittes and Boundes granted before in these presentes unto the said Governor and Company as they in theire Discrecions shall thinke fitt and requisite and for the supply of such as shall bee needefull and convenient to keepe and bee in the same to send out of this Kingdome to the said Castles Fortes Fortifications Garrisons Colonyes Plantacions Townes or Villages all Kindes of Cloathing Provision of Victuales Ammunicion and Implementes necessary for such purpose paying the Dutyes and Customes for the same As alsoe to transport and carry over such number of Men being willing thereunto or not prohibited as they shall thinke fitt and alsoe to governe them in such legall and reasonable manner as the said Governor and Company shall thinke best and to inflict punishment for misdemeanors or impose such Fynes upon them for breach of theire Orders as in these Presentes are formerly expressed
And further Our will and pleasure is And by these presentes for us our heires and Successors
Wee doe grant unto the said Governor and Company and to theire Successors full Power and lawfull authority to seize upon the Persons of all such English or any other of our Subjects which shall saile into Hudsons Bay or Inhabit in any of the Countryes Islandes or Territoryes hereby Granted to the said Governor and Company without theire leave and Licence in that Behalfe first had and obteyned or that shall contemne or disobey theire Orders and send them to England and that all and every Person and Persons being our Subjectes any wayes Imployed by the said Governor and Company within any the Partes places and Lymittes aforesaid shall bee lyable unto and suffer such punnishment for any Offences by them committed in the Partes aforesaid as the President and Councill for the said Governor and Company there shall thinke fitt and the meritt of the offence shall require as aforesaid. And in case any Person or Persons being convicted and Sentenced by the President and Councill of the said Governor and Company in the Countryes Landes or Lymittes aforesaid theire Factors or Agentes there for any Offence by them done shall appeale from the same That then and in such Case itt shall and may bee lawfull to and for the said President and Councill Factors or Agentes to seize upon him or them and to carry him or them home Prisoners into England to the said Governor and Company there to receive such condigne punnishment as his Cause shall require and the Law of this Nacion allow of and for the better discovery of abuses and injuryes to bee done unto the said Governor and Company or theire Successors by any Servant by them to bee imployed in the said Voyages and Plantacions itt shall and may be lawfull to and for the said Governor and Company and theire respective Presidentes Chiefe Agent or Governor in the partes aforesaid to examine upon Oath all Factors Masters Pursers Supra Cargoes Commanders of Castles Fortes Fortificacions Plantacions or Colonyes or other Persons touching or concerning any matter or thing in which by Law or usage an Oath may bee administered soe as the said Oath and the matter therein conteyned bee not repugnant but agreeable to the Lawes of this Realme
And Wee doe hereby streightly charge and Command all and singuler our Admiralls Vice-Admiralls Justices Mayors Sherriffs Constables Bayliffes and all and singuler other our Officers Ministers Liege Men and Subjects whatsoever to bee ayding favouring helping and assisting to the said Governor and Company and to theire Successors and to theire Deputyes Officers Factors Servantes Assignes and Ministers and every of them in executeing and enjoying the premisses as well on Land as on Sea from tyme to tyme when any of you shall thereunto bee required
Any Statute Act Ordinance Proviso Proclamacion or restraint heretofore had made sett forth ordeyned or provided or any other matter cause or thing whatsoever to the contrary in any wise notwithstanding
In witness whereof we have caused these our Letters to bee made Patentes Witness Ourself at Westminster the second day of May in the two and twentieth yeare of our Raigne
By Writt of Privy Seale