MEMORIAL OF THE ILLINOIS AND OUABACHE LAND COMPANIES, TO THE HONOURABLE CONGRESS OF THE UNITED STATES. INTENDED AS A FULL RECAPITULATION AND CLEAR STATEMENT OF THE FORMER ADDRESSES, PETITIONS, MEMORIALS, &c OF THE COMPANY; AND THEIR SHORT AND FINAL PRAYER FOR REDRESS, WITHOUT DELAY: PRESENTED AT THE SESSIONS, 1802.
THAT your Petitioners, since the year 1780, have presented sundry Memorials and Petitions, which remain among your Files. Stating their Purchase from the ABORIGINES, or NATIVE LORDS OF THE SOIL, prior to the AMERICAN REVOLUTION; exhibiting their Original Deeds for the Lands purchased from the said true and absolute Proprietors of the Soil, the Consideration money well and bona fide paid, with all other Documents and Proofs, which they conceived necessary to validate their Rights and support their Claim.
See from page 2 to page 25 of the printed Pamphlet, hereunto annexed or attached, to which in this Memorial we shall sometimes refer, in order to save the precious time of Congress, in turning over and examining their own journals and Files, and to assist such Members as may have time and inclination, to attain any further explanation than from the face of this final Memorial may appear.
Our first Memorial was presented to Congress early in the year 1781, setting forth, in the conclusion, "That the country within the Indian Grants to the Company, was amply sufficient for the establishment and settlement of a new state; that the Company acknowledging (as they ought) the sovereignty of the United States, offer to cede to them, on equitable and liberal terms, a considerable portion of the said Territory, by which a complete title to the same (under the native Lords of the soil) will be vested in the United States, which may be made use of by Congress, for the most important purposes."
When the Company met to draw up this Memorial, it was urged by many Members, that the transaction of business and the forms and modes pursued by Congress in coming to decisions upon paper documents and claims, were often dilatory, unless they were supported by something stronger; that possession was a great point (by some considered as nine points in ten of the Law;) that a settlement and possession, by a proposed offer of disbanded officers, soldiers and others, looking for lands in the Western countries, would easily and immediately (with the consent of the Indians then obtained) introduce a respectable colony, upon the plan of settlement which the Company had established. But a majority of the Company present at that meeting, "on principles of zeal and attachment to the American cause, or cause of the people of the United States, carried the question, viz. To suspend all measures
5respecting settlement, until the final establishment of Independence and Peace with Great-Britain."
The Memorial was then signed and committed to James Wilson, Esq. to be presented to Congress, as Agent for the Company, concluding as above stated. And, as further reasons to favour the prayer of the Memorial of 1781, it was stated in subsequent Memorials and conceded by the Company, that cheerfully submitting the determination of their "Rights to the United States, either in Congress assembled, or in their own courts of law; yet as expediency and the general system of policy" (which may be government, but not law arguments) "may be averse to the vesting or confirming such extensive grants to Companies or Individuals; and as several state governments or communities, from this consideration and a view to expediency and public good, have ceded to the general government, large proportions of their claims and territories for protection in the rest; the company authorize and instruct their committee, (who were James Wilson, Esq. William Smith, D. D. and Colonel John Shee,) to propose and negotiate a like surrender or cession, of their right and title to the lands aforesaid, by a conveyance of the same to the United States, upon receiving such compensation, in part of the lands, as may appear consistent with their Justice and liberality, taking into account the consideration paid to the native lords of the soil, and the value of the shares purchased
6from (and under) the first grantees by individuals, having a full confidence in the validity of the Title." (See printed proceedings annexed, page 29, 30, which may be authenticated from the originals on the Files of both Houses of Congress.)
And in case the foregoing proposals of the company should not be considered as sufficiently explicit, concerning what quantity or part of their Indian Grants, the company would cede to the United States, they explain and set forth in a subsequent Memorial,
"That it is proposed on behalf of the company, to surrender and convey to the United States the (whole) lands described, or meant to be described in their deeds from the Indians; on PROVISO, that the United States re-convey one fourth part of the said lands to the company, (meaning those of them their heirs and assigns who remain and are citizens of the United States,) according to such location or locations of the same as may reasonably be agreed upon; whereby the United States will derive from the true and native Proprietors, a just and absolute title to a large and valuable tract of country, not otherwise treated for, nor yet purchased (as to soil by them the United States,) nor yet the pre-emption thereof; and this without any new purchase or consideration, except so far as is usual in the recognition of purchases, and brightening the chain of friendship at subsequent treaties." And it is further submitted in a subsequent Memorial, referring to the above, "That it is hoped (and the company are persuaded) the government of the
7United States would not reject such a valid Title, as they may receive (according to the foregoing statement) to the great injury of their own good citizens; and, at a greater price, recur to the Indians for a new purchase, [after the extinguishment of their right by the Company's deeds;] which would be to sink in the pockets of those Indians, [some of them not at present very friendly,] the large sums that have been expended by first bona fide purchasers, who remain true and faithful Citizens of the United States." [See printed proceedings, page 29, and Memorial of January 1797, following page 55, of printed proceedings.]
Your Petitioners having now brought into one brief statement, the sum and substance of all their former Petitions and Memorials to Congress, referring to your own Journals and the printed proceedings of the Company for the verification of the same, since their first Memorial in 1781, they beg leave to state the proceedings of Congress thereupon, which in that long and tedious period of more than twenty years, are all contained in the following reports of committees, not yet acted upon, viz.
1st. The report of a committee appointed in 1781, on the cessions of New-York, Virginia and Connecticut, and the Petitions of the Indiana, Vandalia, Illinois and Wabash Companies. On the Petition of the latter, (viz. the Illinois and Wabash) Company, the report is as follows, viz.
"Your Committee also having fully considered the Petition of the Illinois and Wabash Companies, do report the following resolution:
Resolved, That the Petition of the Illinois and Wabash Companies be dismissed." Reasons:
"1st. It appeared to the Committee by the confession of the agent for the Company, that the said purchase had been made without the licence of the then Government, or other public authority, and as your Committee conceive, contrary to the common and known usage in such case established."
"2dly. That the purchases were made of certain Indians, without any Public Treaty or other public Act of Notoriety."
"3dly. That one of the deeds beginning on the north side of the Illinois, contains only a number of lines without comprehending any land whatever."
"4thly. The Wabash purchase has been made since the present Revolution, when Congress had an Agent for Indian affairs residing at Fort-Pitt, who had no notice thereof."
"5thly. That the Six Nations, and their Tributaries, claim the said Lands in opposition, to the Indians conveying the same in the deed to said Company."
Nothing having been done on the above report of 1781, the Company continued, from time to time, to present Petitions and Memorials, till about eleven years afterwards, the House of Representatives referred the Petitions to three members, Mr. Livermore, Mr. Clark, from New-Jersey, and Mr. Fitzsimmons. The Senate also referred the same to five members, viz. Mr. Strong, Mr. Sherman, Mr. Ellsworth, Mr. Izzard and Mr. Burr; who, although they heard the
9Committee of the Company jointly, reported to their respective Houses separately, as follows, viz.
"The Committee of the Senate, to whom was referred the Memorial of the Ilinois and Wabash Land Companies, report:"
"That the claims of the Petitioners are founded on two deeds mentioned in the said Petition; one of which, to William Murray and others, who are called the Ilinois Company, is dated July 5th, 1773, and the other to Lord Dunmore, and others, who are stiled the Wabash Company, bears date October 18th, 1775."
"That the said Petitioners have proposed to surrender and convey to the United States, all the lands described, or meant to be described, in the above mentioned deeds, from the Indians, on the proviso that the United States re-convey to the Company one-fourth part of the said Lands."
"That, in the opinion of the Committee, deeds obtained by private persons from the Indians, without any antecedent authority or subsequent confirmation from the Government, could not vest in the Grantees mentioned in such deeds, a title to the lands therein described."
"That the Petitioners do not suggest any such antecedent authority or subsequent confirmation in the present case; and, THEREFORE, in the opinion of the Committee, the said Petitioners have not a legal title to the said lands."
"That the proceeds of the sales of Lands in the Western Territory belonging to the United States,
10are appropriated towards discharging the debts for the payment whereof the United States are holden."
"The Petitioners allege, that the considerations specified in the said deeds, were paid to the Indians, and were, at least, as valuble as any that were given on similar occasions; and that the Indians named in the said deeds, were owners of the land.
"On these points, the Committee give no opinion; but, for the reasons above expressed, they think it would not be expedient for the Government of the United States to accede to the afore-mentioned proposition of the Petitioners."
The Committee of the House of Representatives report as follows, viz.
"The Committee, to whom was referred the Memorial of the Ilinois and Wabash Land Companies, report:"
"That the claims of the Petitioners are founded on two deeds, mentioned in the said Petition, one of which to William Murray and others, who are called the Ilinois Company, is dated 5th July, 1773, and the other to Lord Dunmore and others, who were stiled the Wabash Company, bears date October 18th, 1775."
"That the said Petitioners have proposed to surrender and convey to the United States all the lands described, or meant to be described, in the above-mentioned deeds from the Indians; on the proviso, that the United States re-convey to the Company one-fourth part of the said lands.
"And, that in the opinion of the Committee, the said deeds having been given by the Indians, proprietors of the soil, before the Declaration of Independence of the United States, for a valuable consideration, bona fide paid, are sufficient to extinguish the Indian title to the land therein described."
"And, therefore, that on principles of justice and equity, the United States should agree to the proposal aforesaid, made by the Petitioners."
On these Reports, your Memorialists beg leave to observe, that the Committee of the House of Representatives, (Anno. 1792) were in favour of the prayer of our sundry Petitions, declaring "That, in their opinion, the deeds to the Company having been given by the Indians, proprietors of the soil, before the Declaration of the Independence of the United States, for a valuable consideration, bona fide paid, are sufficient to extinguish the Indian title to the lands therein described; and therefore, that on principles of justice and equity, the United States should agree to the proposal made by the Petitioners" (which as above stated in their report was to convey their whole rights to the United States, on proviso of their reconveyance of one-fourth part of the same to the company) on this report of the Committee of the House of Representatives, the Company have nothing to add, but that they are still willing to abide by their former proposals. But they have much to object to the report of the general
12Committee of Congress, 1781, and the report of the Committee of the Senate, 1792, above recited.
Both these reports agree in objecting to the Company's purchase.
1st. Because, it appears that the purchases had been made without the license of the then government, (viz. the government of Great-Britain) or other antecedent public authority, or subsequent confirmation, contrary (as they conceive) to the common and known usage in such case established.
2d. The Committee of Senate, 1792, have an argument of their own, not founded or pretended so to be, in what might be law or justice, respecting the Company, but expediency and expost facto appropriations of the Western Lands, because, say they, "The proceeds of the sales of lands in the western Territory, belonging to the United States, are appropriated towards discharging the debts, for the payment whereof the United States are holden." But this is no argument, being only a begging of the question, viz. "That the lands in dispute do belong to the United States," although alienated by the lords of the soil, prior to the existence of the United States; whether justly or not, being yet the great question, abiding for legal decision.
3d. The general Committee of Congress, for 1781, have two arguments of their own, which seem to have been abandoned by the Committee of the Senate, in 1792, viz.
1st. "That one of the deeds to the Company, contains only a number of lines, without comprehending
13any lands whatever," (which if true, could not affect one of the tracts in the said deed, nor the two tracts contained in the other deed.)
2d. "That the Six Nations, and their tributaries, claim the same lands, in opposition to the Indians conveying to the Company."
After this statement of objections made to our claim by the general Committee of 1781, and the Committee of Senate, 1792, we now proceed to the documents and arguments we have heretofore laid before Congress, in opposition to these two Reports, and in support of our claims, as remaining among Congress Files, and stated in the printed proceedings of the Company hereunto annexed.
As to the first objection, "That the purchases were made without the licence of the then government," we have answered "That, under the government of Great-Britain (in whose place the United States now happily stand, and who can derive no authority over these Indians, more than Great-Britain had, unless by some treaty or agreement with them, posterior to our purchase and since the revolution,) we say that no licence from Great-Britain was necessary to any Indian purchase, except in the case of the Six Nations, and their known tributaries, who had alienated to Great-Britain the pre-emption right of their lands, at such times as they might be inclined to treat or sell.
With respect to all other "Lands that had been or might be acquired by treaty or grant from any other Indian princes or government, the king's
14consent to purchase was not necessary, nor his letters patent to confirm the bargain, the property of the soil vesting in the grantees by the Indian grants, subject only to his majesty's right of sovereignty over the settlements, as English settlements, &c."
This was the opinion of two great Lord Chancellors of England, Pratt and Yorke, delivered August, 1772, prior to our purchase. See our printed proceedings, page 34.
Sundry other purchases were made of those Indians, in the neighbourhood of Kaskaskias, Fort Charters, and Post St. Vincent, without previous licence, or subsequent confirmation, of the then government; and never since questioned, but on the contrary, are now in the possession of the purchasers under the government of the United States.
The same doctrine, concerning the right of private citizens, as well as chartered companies, to purchase from the Indians (without the interference of the government) had long before been exercised, and deemed valid in law. (See page 3 and 4, of the supplement paper to the printed proceedings) viz.
The famous case of Major Mason's purchase of the Moheagan Indians, 15th of August, 1659, which was litigated for near seventy years, and at last determined before the highest appellate judicature for the colonies, as follows, viz. "That the royal grant, subsequent to Mason's purchase from the natives, could give no legal title to the lands in dispute." Here the lawyers concerned, were Yorke, De Grey, Dunning, Jackson, Wedderburne, &c. with Pratt
15and Yorke, to the opinion of 1772; a phalanx of six lawyers, than whom, none greater or more incorrupt ever graced the bench or bar of England.
Permit us further to state the following facts gathered from the arguments of those great lawyers, and other authentic documents.
The charter of Connecticut, founded as well on a purchase of Mason's rights confirmed as above to them long afterwards, and also their own purchase from the said Moheagan and other Indians, was made without any special licence for that purpose.
The charter of Rhode Island recognizes private purchases.
The inhabitants of New-London hold their town, by purchase from the Moheagan Sachems, before they conveyed any pre-emption right to the colony of Connecticut.
Before the year 1763, it was the policy of England to extend the claims of the Six Nations, but in the treaty with them afterwards, at Fort-Stanwix, they would not allow their claim, nor accept any cession of territory, further than the Cherokee river, and the royal proclamation of 1763, extending no farther than the claims of the said Six Nations.
The colonial grants vested no title, when there was not a legal one before under the lords of the soil, such colonial grants being considered only as acts of political distribution of the country, varying no man's title or right: And the United States will not dispute, that whatever they take under the treaty of 1782, and the final establishment of independence, continues subject
16to former contracts between the native Indians, and states, companies or individuals.
On this subject, your Memorialists have said enough, and, perhaps, more than enough; but hope no offence can be given by the length or freedom of any of the statements which they have deemed necessary, in support of their claim.
With respect to the next objection, or argument of the general Committee, of 1781, (noticed, but apparently abandoned by the Committee of Senate, 1792,) viz. "That one of the deeds contains only a number of lines, without comprehending any lands whatever." [See the answer of the Company, in No. 1, of their supplementary printed proceedings, page 5.]
In answer to the other argument or objection of the Committee of 1781. viz. "That the Six Nations and their tributaries, claim the same lands, in opposition to the Indians conveying the same to the Company," (which as said before, seems abandoned also by the Committee of the Senate, 1792) though it appeared a gratis dictum of the committee of 1781, and also void of that knowledge of Indian affairs, which, in our opinion, ought to be the foundation of such an article in the report of a learned Committee, militating against an humble Petition of good citizens; your Memorialists thought it their duty to enter deeply into the history of Indian affairs, to prove the absolute independence of the Illinois and Ouabache Indians, commonly known by the name of Kaskaskias, Piankeshaws, Miames, &c. divided into many tribes;
17that the Iroquois, or Six Nations, or the French government of Canada, or Great-Britain, in right of the Six Nations, never claimed, nor pretended any right or controul over them in the disposition or alienation of their lands.
The arguments in support of these assertions of your Memorialists, are of great consequence to the people and government of the United States, and although lengthy, it is hoped, will be fully considered by Congress, or such committees as may be appointed, to take into consideration this Memorial and Petition.
We mean the arguments, statements, &c, concerning the Indian affairs, beginning page 31, of our printed proceedings, hereunto annexed, and continued through 20 pages, that is, from page 31 to page 51, and also (connected therewith) an account of their tribes, villages, hunting-grounds, &c. from page 13 to page 21, of the supplementary papers.
The Committee of 1781, advanced another objection. "That the purchases were made without any public treaty, or other public act of notoriety." The direct contrary of which appears not only from the face of the Company's deeds, but by the records of both treaties held under the authority of the British government, at Kaskaskias, in June and July, 1773, and post St. Vincent, in September, 1775. The king's interpreter acting for the purchasers in the first deed, sworn before captain Hugh Lord, the commandant, and the deed certified by him; the same formality, notoriety, &c. attended the second deed at post St. Vincent,
18in 1775, tested by the commanding officer, St. Maria, the sworn interpreter, the notary public, and remaining on the registry at Kaskaskias. [See the deeds, and also supplementary papers, passim.]
Another strange assertion is made by the Committee of 1781. "That the purchase of 1775, was made since the American revolution, when Congress had an agent for Indian affairs at Fort-Pitt, who had no notice thereof." [See a full answer to this in No. 1. of supplementary papers; from p.5 to p.7;] to which we add nothing; for an agent, if they had any, could then have no controul over those Indians, nor over purchasers, who were still citizens of the former government.
Your Petitioners wish they could have condensed their statements and arguments into less compass: but, trusting this would be their last Memorial necessary, they strove to be full and clear, leaving nothing to add. They, therefore, beg leave to conclude, humbly submitting it, whether they have not fully supported the following facts, viz. 1st, That the Ilinois, or Kaskaskias tribes of Indians, on the one part, and the Ouabache, or Piankeshaw tribes, on the other, were severally proprietors of the lands, severally sold and conveyed by them to the Company. That they always were, and still remain free and independent nations, in respect to property; ancient members of the western confederacy, never conquered, nor held tributary to any power on earth; nor ever surrendered their property nor the pre-emption thereof, to any other people or power.
2d, That no prohibition, from Great-Britain, extended, or could extend, beyond the territories of the Six Nations and their tributaries, (the pre-emption right of whose lands only was in the crown of Great-Britain); and that said Six Nations never pretended conquest over, but limited their claims of territory and conquests far on this side of, the Ilinois and Wabash countries.
3d, That therefore a transfer of the Company's deeds to Congress, would bar all future claims of the Indians to the lands in question, prevent the necessity of any second purchase, at least any further sum than a small acknowledgement for confirmation of the deeds at a future treaty, and thereby enable the United States, in their wisdom and magnanimity, to do that justice, which we conceive, the equity of the case requires, to such of the grantees, their heirs and assigns, as have remained faithful citizens, sundry of them filling high stations under the government of the union; whose claims might be satisfied at no great expense, as not above twenty-five or twenty-six of the forty-two original shares, now belong to such citizens. If this plan is adopted by Congress, agreeable to the recommendation of the Committee of the House of Representatives in 1792, there may be a speedy end of the business, by a compromise, in which we are persuaded, the equity and justice of Congress, and moderation of the claimants, will equally and absolutely govern.
But, if this business is to go on, to be referred and litigated from year to year, before committees of
20both houses, upon the principles of the report of 1781, or of the report of the Committee of the Senate; it may be twenty years more before it is brought to a final and accordant decision of both houses of Congress, and occasion a delay, hardly short of denial, of justice.
That Congress, considering the delays that are unavoidable in decisions by large bodies, the delicacy of their situation in their legislative capacity, and in a manner parties in a case, between the United States and a number of private citizens, they will not account themselves as the most proper tribunal of adjudication; but devise some mode for a final investigation and decision, either in their own courts of law, or by law commissioners, specially to be appointed and speedily to sit; which last would probably be the most convenient, and least expensive mode to your Petitioners, who shall ever pray, &c.
WILLIAM SMITH, JOHN SHEE,
SURVIVORS of the Committee appointed and authorized to solicit, manage and negotiate the affairs of Company, with CONGRESS. Vid. antea p.5.
March 3d, 1802.
Attest, JOHN H. BRINTON, SECRETARY.