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English policy.—The English government at this gation to purchase Indian land, for we find that, in an answer to a remonstrance concerning colonial affairs, certain plantation in the north parts of Virginia, which had been bought by the Dutch of the natives, it was denied "so as to be able to dispose of them either by sale or donabeing in common,” and that it could not be proved that lish as well as the Dutch did, at least nominally, purchase the course of colonization.
the Freedoms and Exemptions, was inconsistent with the general right of the people to become independent landowners. We are therefore not surprised to find that, in a new project of Freedoms and Exemptions, proposed in October, 1634, but which was not approved by the States General, it was declared that “all private and poor people are excluded from these Exemptions, Privileges and Freedoms, and are not allowed to purchase any lands or grounds from the sachems or Indians in New Netherland, but must repair under the jurisdiction of the respective Lords Patroons.”
The history of that period shows that there was an active and protracted controversy between the Dutch and English as to the title to certain parts of Long Island and Connecticut, but this controversy, especially in its national aspects, was terminated by the English conquest in
apparently entertained different views of the oblipresented by the Dutch ambassador to Charles I. in 1632, in which it was claimed that the English had usurped a that the Indians were in bona fide possession of the lands tion, their residence being unsettled and uncertain, and all the natives had joined in the pretended sale. If this was intended as a statement of English policy, it was soon modified, for in subsequent colonial history the Engof the Indians land which was occupied and settled in
The policy of a central control of Indian affairs, which included a prohibition against purchasing Indian lands without the consent of the government, and which policy has been expressed in all our Constitutions, was asserted in the Dutch Freedoms and Exemptions and continued under the English colonial administration; accordingly, we find that the governor and council exercised jurisdiction over this subject, and granted or refused, in their discretion, petitions for leave to purchase Indian lands. I have elsewhere given a history of the establishment of the New York assembly in 1683. At its second session in October, 1684, the assembly enacted a law which stated in substance the rule in relation to Indian contracts, which was incorporated ninety-three years afterwards in the first Constitution. This act provided "that from henceforward no purchase of lands from the Indians shall be esteemed a good title without leave first had and obtained from the governor, signified by a warrant under his hand and seal, and satisfaction for the said purchase acknowledged by the Indians from whom the purchase was made;" and the deed, with proof of payment, was required to be recorded in the office of the secretary of the colony.
The English policy of purchasing lands from the Indians, to which I have already referred, was formally adopted by the Duke of York, for many years proprietor of the colony. In his instructions to Governor Andros, in 1674, he observed that if opportunities are presented for purchasing “great tracts of land,” the Governor and council should use their discretion and make such purchases as might be deemed for his interest. So, in the Duke's instructions to Governor Dongan in January, 1683, the Governor was requested to purchase from the Indians, on reasonable terms, land contiguous to the Duke's territory. Instructions to subsequent governors
embrace substantially the same directions, and their reports show the purchase of large tracts which were added to the colonial possessions.
Treaty of 1701.—On the 19th of July, 1701, a conference was held at Albany between Lieutenant Governor John Nanfan and representatives of the Five Nations (Mohawks, Oneidas, Onondagas, Cayugas, and Senecas), at which time an agreement was made with the Indians concerning a large tract of land. The Lieutenant Governor, in his report on the 20th of August, said he had procured from the Five Nations an instrument whereby they convey to the Crown of England "a tract of land 800 miles long and 400 miles broad, including all their beaver hunting." But this transaction, by which the Crown apparently acquired 320,000 square miles of territory,—a tract some six times larger than the state of New York, does not seem to have been deemed a cession and relinquishment of territory, but, at most, an arrangement by which the English government acquired a general dominion and assumed the defense and protection of the Five Nations. I have not seen a copy of the instrument referred to by Lieutenant Governor Nanfan, and from Wraxall's Indian Records (unpublished), containing an abridgment of the transactions relating to Indian affairs, it seems that the deed was not recorded in the original transactions, which are now said to be lost. Wraxall's Abridgment quotes from the original transactions a proposition made by a representative of the Five Nations, and which was apparently accepted, that "we do give and render up all that land where the beaver hunting (is) which they won by the sword then eighty years ago, and pray that he, the King, may be our Protector and Defender," and they offered to sign and seal an instrument to be prepared for that purpose. The arrangement was apparently not completed, or, at least, it seems to have re
quired further attention, for on the 14th of September, 1726, the representatives of three tribes, the Senecas, the Onondagas, and Cayugas, executed an instrument intended to confirm the agreement made in 1701. A copy of this second deed is preserved in the New York archives. It recites that, at the Albany Conference, July 19, 1701, the sachems of the Five Nations "did give and render up all their land where the Beaver Hunting is which they won with the sword then eighty years ago, to our Great King, praying that he might be their Protector and Defender there," and for which they requested that an instrument be prepared for them to sign and seal and to be carried to the King. The deed then goes on to ratify and confirm the agreement made in 1701, and grants to the King “all the said land and Beaver Hunting, to be protected and defended by his said Majesty, his heirs and successors, to and for the use of us, our heirs and successors, and the said three nations."
Sir William Johnson's negotiations.—The apparent effect of the arrangement initiated in 1701 and consummated by three members of the Indian confederacy in 1726 was to establish an English protectorate over the territory embraced in the treaty. The Indians did not abandon the land, and the English acquired no rights or ownership therein. This construction was afterwards maintained by the Indians and acquiesced in by the Crown, for in subsequent negotiations between Sir William Johnson, superintendent of Indian affairs, and the Indians, concerning the acquisition of territory, the treaty of 1701 was ignored, or, at least, was not deemed to give the English an absolute title or even a right of possession. The history of the relations between the English and the Indians in New York for several years prior to 1768, when a new treaty was made relating directly to the acquisition of territory, discloses a long
series of negotiations in which Sir William Johnson manifested a degree of patience, persistence, intelligence, and integrity which readily accounts for his high standing with his own government and the esteem in which he was held by the Indians. The details of that history need not be given here.
The negotiations during this period do not show any change of policy concerning Indian land, but, on the contrary, they evince a purpose to continue the policy which had prevailed more than a century, and which recognized the Indian title, and required its extinguishment by purchase.
Fort Stanwir treaty of 1768.—The last important treaty relating to territory made with the Indians prior to the Revolution was the so-called Fort Stanwix treaty, which bears date November 5, 1768. By this treaty the western boundary of English possessions was established by an irregular line beginning at Owego, near Pennsylvania, and terminating at the mouth of the Canada creek, where it empties into Wood's creek, near Oneida lake. This seems to have been the western boundary of the colony when the first Constitution was adopted, in 1777, though the nominal boundaries of the colony were deemed of much wider extent.
Governor Tryon's report.-An interesting view of this, question is presented in a report on the colony made by Governor William Tryon to the home government June II, 1774. He discusses the boundary question at some length, including the effect of the so-called treaty of 1701. In answer to the question "What are the reputed boundaries, and are any parts disputed, and by whom?" he says, among other things, that "the boundaries of the province of New York are derived from two sources: First, the grants from King Charles the Second to his brother, James, Duke of York, dated the 12 of March, 16634 and the 29 of June, 1674, which were intended to: