Illinois River and thence the Mississippi to its mouth in 1682. He took possession of the country from the Ohio to the sea and Rio Grande and named it Louisiana after his king, Louis XIV. He based his title to this great expanse of territory on discovery, claiming to have been the first European to have ascended or descended the Mississippi, being ignorant, apparently, of earlier Spanish explorations. The territory between the Mississippi and the Ohio, which extended eastwards to the fringe of the English settlements on the coast, was inhabited by large and important tribes of Indians, particularly in the region from the mountains of western New England to Lake Erie. The league of the Iroquois, or the Five Nations, was the key to this position, and so long as they were unsubdued the effective possession of the region north of the Potomac and the Ohio and east of the Mississippi could not be attributed to either English or French. In the main the Iroquois sided with the Dutch and the English against the French and after the cession of the Dutch settlements to England by the Treaty of Breda, 1667, they formed a useful barrier to the French claims. This was strengthened in 1684, when, after a conference with the Five Nations, they acknowledged themselves as subjects of England, and the arms of the Duke of York were placed on the walls of the Iroquois fortified towns.2 French claims to sovereignty over the areas in which these tribes lived were no longer tenable after effective possession had been taken. The legal position of the Indian tribes has in modern times received a considerable amount of attention, as numerous cases involving their status have come before the courts of the United States. In the early days, however, proprietary and sovereign rights were never clearly differentiated, and, although Spanish publicists at the time of the conquest of America upheld the claims of the Indians and condemned the treatment they were receiving at the hands of their conquerors, European nations continued to assert rights acquired by discovery against the rest of the world, but they made treaties from time to time with the Indian nations inhabiting the lands in the territories which they claimed. In all the territories in North America which were included in the earliest charters to colonisers the soil was occupied by Indians. In many cases the colonists purchased their lands from the Indians, and protected them in the possession of those which were left in their occupation. Penn's treaty in 1681 was a remarkable example of such a purchase. The general position of the Indian tribes was regarded by England in much the same way as at a later date the United States regarded their relation to these nations, namely, as domestic dependent nations; the relationship being analogous to that of guardian and ward. The general 1 See Channing, E., History of U.S. vol. п, chap. v. 2 Ibid. p. 146. E.g. Bishop Las Casas. See Helps, Sir Arthur, The Spanish Conquest of America. 4 The Cherokee Nation v. The State of Georgia, 5 Peters, 1. STATUS OF INDIAN TRIBES 545 position was set forth by Chief Justice Marshall, delivering the opinion of the Supreme Court of the United States in the case of Johnson and Graham's Lessees v. McIntosh, in 1822: "The relations which were to exist between the discoverers and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them....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.”1 Throughout this period, down to the War of Independence, the British Government did not interfere with the internal affairs of the Indian tribes, except where it was necessary to keep out the agents of foreign Powers who were attempting to seduce them from their allegiance. Their alliance and dependence were purchased by subsidies, and the Indian nations were considered as nations who had come under the protection of the British Crown. The Indian tribe, as a nation, was considered as a legal unit, and, before the Revolution, all the lands of the Six Nations in New York had been put under the Crown as "appendant to the Colony of New York”, and that colony had dealt with those tribes exclusively as under its protection.3 Meantime the northerly and to some extent the westerly expansion of French Canada was checked by the establishment under a charter of Charles II in 1670 of the Hudson's Bay Company. The area south of Hudson Bay was approached by a line of communication between Lake Superior and Hudson Bay, and a voyage from London to Hudson Bay was successfully made by a company of traders in 1668. Englishmen thus secured a footing on the southern and western shores of this great inland sea with a series of trading stations from Lake Superior northwards. Annexation under the charter and settlement by the traders, the two essentials now recognised by international law as giving a valid title by occupation, were thus combined. This possession was soon disputed, and the French under the energetic D'Iberville were able to oust the English traders, until by the Treaty of Utrecht, 1713 (Art. x), France restored to Great Britain and recognised her sovereignty over Hudson Bay and Strait with all dependent lands, seas, banks, rivers and places. Territory then in French possession was to be restored together with all forts, artillery and ammunition. The boundary between the English and French possessions was to be settled by a joint commission. 1 8 Wheaton, Reports, 543, 573, 574.. 2 Wheaton, H., International Law, § 38. The case of the Cayuga Indian claims before the American and British Claims Arbitration Tribunal, 1926 (American Journal of International Law, XX, 574); see also Halleck, H. W., International Law, 4th edn, 1, 80; Lindley, M. F., The Acquisition and Government of Backward Territory, chaps. xxxvi and xxxvii; Moore, J. B., Digest of International Law, vol. I, §15; Snow, A. H., The question of aborigines in the law and practice of nations; Westlake, J., Collected Papers, chap. ix. CHBEI 35 Great areas were still uninhabited and undiscovered by white men, and the only test which could be applied to claims to sovereignty was that of effective possession. The French did not penetrate the Appalachian range of mountains which formed a natural boundary for the English settlements. But from New Orleans to the southern shores of Lakes Michigan, Erie and Ontario the French had isolated forts on the great rivers. It was the obvious aim of France to confine the English colonists to the east of the mountainous ranges extending in a north-easterly direction from the higher reaches of the Alabama to Lake Champlain, and France was slowly making good her claim by occupation to the whole basin of the Mississippi. During a period of nominal peace in Europe between England and France the struggle continued with varying fortunes on the American continent. It was felt, as Benjamin Franklin said, that there could be no peace in the thirteen colonies so long as France was mistress of Canada. French forts were erected on debatable ground and there was constant friction, and open fighting on various portions of the frontiers. Meantime a boundary commission had been set up in 1750 by the two governments to delimit the frontiers between British and French territory in North America and to settle the question of the ownership of the islands of St Vincent, Tobago and St Lucia. Nothing of practical value resulted from their labours and in 1754 the governments entered into direct negotiations on the boundary question. The line between peace and war was still very undefined as it had been in the time of the struggle between England and Spain in the sixteenth century. Acts of violence took place at sea between States before any formal declaration or breach of diplomatic relations, though these sometimes followed. General reprisals, indistinguishable from war in practice, were frequently decreed or wrongs or alleged wrongs, though a state of war was not desired.1 The destruction by Sir George Byng (afterwards Lord Torrington) of the Spanish fleet off Cape Passaro in Sicily in August 1718 occurred under peculiar circumstances, Great Britain and Spain being at the time at peace (war was not formally declared until the following December). The proposed modifications of the Treaty of Utrecht (elsewhere explained) were hateful to the King of Spain, who to prevent Sicily from being transferred to the Emperor prepared to attack it. Sir George Byng was British Commander-in-Chief in the Mediterranean with general instructions to prevent Spain from interfering with the arrangements which had been made by the Powers of the Quadruple Alliance. In July the Spaniards had landed in Sicily and taken the whole of the island except Messina. Byng wrote to the Spanish commander, the Marquis de Lede, proposing a suspension of arms for two months. This was refused. Byng went in search of the Spanish 1 Marsden, R. G., п, 273, 279, 283. PACIFIC BLOCKADE 547 fleet, which was sighted off Cape Passaro. A Spanish ship opened fire on the British fleet, which then bore down on the Spaniards and "made an end of them" (11 August). Very few escaped. Spain at once ordered reprisals on British ships and merchandise in Spanish ports; Byng retaliated on Spanish shipping, but a formal declaration of war was delayed till the end of the year (28 December).1 Twenty years later, in 1739, when again England and Spain were on the verge of war and negotiations were on foot to stave it off, England, as part of a compromise, agreed to allow Spain to set off against the indemnity demanded for the wrongful exercise of the rights of visit and search in the Spanish Main, the damage done to her fleet at Cape Passaro, a recognition by England of the doubtful legality of that action. In February 1744 a great sea fight between the British and combined French and Spanish fleets took place off Toulon, before war was actually declared.3 Again, in 1725, British policy was directed towards preventing Spain from joining Russia and Austria, and in furtherance thereof Walpole gave orders for the pacific blockade of Porto Rico, giving strict injunctions against fighting. Walpole's manoeuvres, cutting off for the time being supplies on board the Spanish ships assembled there, were successful in preserving the peace; though the action was one of high-handed power, it is an interesting example of Pacific Blockade against a Great Power. Spain, in retaliation, made an unsuccessful land attack on Gibraltar, but did not declare war till 1727. The continued struggle between England and France in America in time of peace has already been mentioned. In 1755, nearly a year before war broke out, Hawke was sent to sea to seize all French ships between Ushant and Finisterre, and later to send in all French ships. So before the end of the year and six months before war came there were 300 French merchant ships and 6000 French sailors in England. France retaliated in April 1756 by the attack on Minorca which cost Admiral John Byng his life. English and French warships fought each other in the Channel and in the West Indies though war was not officially declared until May 1756.4 A curious situation was caused in India in 1744 when war had actually broken out between England and France. La Bourdonnais who was in command of the islands received orders from the French East India Company not to attack the English Company if the latter consented to refrain from hostilities. The English Company accepted the French proposal on the understanding that it did not bind the Home Government. But as the latter sent naval forces into the Indian Ocean and was capturing French shipping, the French acted on the 1 Clowes, W. M. L., The British Navy, m, 32; Mahan, A. T., The influence of sea power upon history, p. 237. : C.M.H. VI, 157. 3 Mahan, p. 265; C.M.H. v1, 239. Mahan, p. 284; Clowes, I, 291. offensive and in September 1745 La Bourdonnais captured Madras. In the terms of the capitulation the governor was allowed to ransom it for £420,000, which was paid. Dupleix, however, subsequently refused to observe the capitulation as being made without his superior authority and kept Madras till it was restored to England by the Treaty of Aix-la-Chapelle. There are few subjects in international law which have occasioned more controversy than the position in time of war of enemy goods carried in neutral ships, and of neutral goods carried in enemy ships. From the middle of the seventeenth century onwards until the middle of the nineteenth there was a constant endeavour on the part of neutral States to obtain the most favourable treatment of their ships and goods. The controversy was pre-eminently one in which carrying States desirous of remaining neutral wished to obtain the greatest possible advantages for their commerce, and, as was natural, the Dutch, a great carrying power, were the foremost in pressing for the acceptance of a rule which their position rendered most desirable. The law and practice of the Middle Ages undoubtedly gave the belligerent the right to capture the privately owned property of his enemy, though in process of time this right was modified as regards private property on land. Reasons of expediency and military discipline were those which told in favour of this mitigation, but similar arguments did not avail as regards property carried in ships at sea. We have already seen that neutral rights were of such slight importance in the early part of the seventeenth century that Grotius devoted to them only one short chapter in his De jure belli ac pacis. After the Peace of Westphalia, 1648, the claims of neutral States for protection of their trade increased. Taking the position that they were not concerned in the contest, they claimed for their subjects the right to carry on their commerce with all the belligerents as if no war existed. The belligerents' attitude was that any interference by a neutral in the trade with the enemy was an advantage to him by releasing his sailors for military operations, and so enabling him to obtain fresh supplies of money and commodities. England early apprehended the principle that the destruction of the commerce of the enemy is one of the chief aims of naval warfare, and was consistent in contending for the maintenance of the rules of capture of enemy property, not only on board enemy ships, but also on board those of neutrals. The earliest rules on the subject are contained in the Consolato del Mare,1 a code of maritime law drawn up at Barcelona in the fourteenth century, but embodying older usages. The principles enunciated are that enemy property whether ship or cargo is capturable, while neutral property whether ship or cargo is free. The Black Book of the Admiralty which contains the decisions of the English Courts on 1 For text see Twiss, Sir Travers, Black Book of the Admiralty, vol. m; Pardessus, Collection des Lois maritimes, vol. II. |