STATUS OF THE ILLINOIS COUNTRY IN THE EMPIRE.

Before entering upon the more detailed study of events in the Illinois country during the period of the British occupation, it is necessary to take into consideration certain general aspects of the subject which will enable us to understand more clearly the bearing of those events. The relation of that country to the empire and the view held by British statesmen of the time relative to its status are problems which naturally arise and demand solution. What was the nature of the government imposed upon the French in Illinois after its occupation? Is the hitherto prevailing opinion that the British government placed the inhabitants of those villages under a military government any longer tenable? Was the government de jure or de facto?

The treatment received by the settlements in the Northwest and West in general was fundamentally different in nature from that accorded other portions of the new empire. By the terms of the Proclamation of 1763, [87] civil governments were created for the provinces of Quebec, East Florida, West Florida, and Grenada, while all the western territory outside the prescribed limits of those colonies, including a large portion of southern Canada of today, was reserved as a vast hunting ground for the Indian nations. No mention whatsoever is made in the Proclamation concerning the settled portions of the West and since it is, therefore, impossible to ascertain in this document their governmental status, we will examine the official correspondence of the ministry which immediately proceeded the issuance of the Proclamation to find, if possible, what the directors of the British colonial policy had in mind.

When the question of the Proclamation was under discussion by the Ministry in the summer of 1763, two opposing views with reference to the West were for a time apparent in the ministry. It appears to have been the policy of Lord Egremont, at that time Secretary for the Southern Department, which included the management of the colonies, to place the unorganized territory within the jurisdiction of some one of the colonies possessing a settled government, preferably Canada. [88] It was at least his aim to give to the Indian country sufficient civil supervision so that criminals and fugitives from justice from the colonies might be taken. That he did not intend to extend civil government to the villages or any of the French inhabitants of the West seems clear: his only reference is to the "Indian country" and to "criminals" and "fugitives from justice."

Lord Shelburne, President of the Board of Trade and a member of the Grenville ministry, and his colleagues were of the opinion that the annexation of the West to Canada might lend color to the idea that England's title to the West came from the French cession, when in fact her claim was derived from other sources; that the inhabitants of the province to which it might be annexed would have too great an advantage in the Indian trade; and finally that such an immense province could not be properly governed without a large number of troops and the governor would thus virtually become a commander-in-chief. [89] Shelburne then announced his plan of giving to the commanding general of the British army in America jurisdiction over the West for the purpose of protecting the Indians and the fur trade. [90] Lord Halifax, who succeeded to Egermont's position at the latter's death in August, 1763, fell in with Shelburne's views. But the commission to the commanding general does not appear to have been issued; for Hillsborough, who succeeded Shelburne as President of the Board of Trade in the autumn of 1763, favored a different policy. There is nothing, however, to indicate that Shelburne and his advisers had any thought of the government of the French colonies. There is no hint in any of this correspondence that the ministry had any idea of the existence of the several thousand French inhabitants of the West. [91]

There remain one or two documents in which we might expect to find some reference to the government of the French settlers. The authors of that part of the Proclamation of 1763 which provided for the reservation of the Indian lands and the regulation of the trade, [92] had in contemplation the formation of an elaborate plan comprehending the management of both in the whole of British North America. [93] It was left to Hillsborough, Shelburne's successor as President of the Board of Trade, to direct the formulation of the plan, which was finished in 1764. The details of this program will be taken up in a later chapter, [94] and it will therefore suffice to note the presence or absence of any provisions for the French. The chief object of the plan seems to have been to bring about a centralization in the regulation of the trade and the management of the Indians, and in no place is there any intimation that its provisions have any application to the government of the French residing at the various posts. [95]

Turning to another source we find a document addressed directly to the inhabitants of the Illinois country, dated in New York, December 30, 1764 and signed by General Thomas Gage. [96] Mention has already been made in another connection of the unsuccessful mission of Lieutenant Fraser to Illinois in the spring of 1765, when he carried this proclamation to the inhabitants. But its contents were not announced until the entry of Captain Sterling in October of that year. This proclamation related solely to guarantees by the British government of the right of the inhabitants under the treaty of Paris: freedom of religion, the liberty of removing from or remaining within English territory and the requirements as to taking the oath of allegiance made up its contents. As to whether the inhabitants were to enjoy a civil government or be ruled by the army there is no intimation.

Laying aside the barren papers of 1763-1765 and giving attention to the documentary material after those dates proves much more productive. We are thereby enabled to arrive at some pretty definite conclusions. Fortunately there were a few men in authority during that period who had some interest in the interior settlements, and who, from their official positions realized the difficulties of the problem. Such men have left expressions of opinion and stray bits of information which leave us in little doubt as to the governmental status of the Illinois country. General Thomas Gage, Sir William Johnson, and Lord Hillsborough are perhaps the most representative examples. Gage, who was commander-in-chief of the American army throughout this period, with headquarters in New York City, was in direct communication both with his subordinates in Illinois and the home authorities. He was in a position to know, in general, the state of affairs in the West as well as to keep in touch with ministerial opinion. Sir William Johnson, by virtue of his office as Superintendent of Indian affairs for the northern district, was in a peculiarly strategic position to acquire information. His Indian agents were stationed at all the western posts and he was in constant correspondence with the Board of Trade relative to Indian and trade conditions. From the ministry itself the correspondence of Lord Hillsborough best reflects the prevailing opinion of the government. He was one of the few governmental authorities who took any considerable interest in the western problem and information coming from him must, therefore, have some weight.

That the British commandant of the fort in the Illinois country had no commission to govern the inhabitants, except perhaps that power, which, in the absence of all other authority, naturally devolves upon the military officer, seems amply clear from a recommendation transmitted by General Gage to his superior shortly after the occupation of Fort de Chartres. "If I may presume to give my opinion further on this matter, I would humbly propose that a Military Governor should be appointed for the Ilinois (sic) as soon as possible. The distance of that Country from any of the Provinces being about 1400 Miles, making its Dependance upon any of them impractical, and for its Vicinity to the French Settlements, no other than a Military Government would answer our purpose." [97] In the following year he took a similar point of view in a communication to his co-laborer in America: "I am quite sensible of the irregular behavior of the Traders and have intimated to his Majesty's Secretary of State what I told the Board of Trade four or five years ago: That they must be restrained by Law, and a Judicial Power invested in the officer Commanding at the Posts to see such Law put in force. And without this, Regulations may be made, but they will never be observed." [98]

With the condition of comparative anarchy in the Illinois country during this period and indeed at all the western posts and throughout the Indian country the authorities seemed unable to combat successfully. Had all the regulations outlined in the plan for the management of Indian affairs, [99] been put into operation the Indian department would have been able to cope more successfully with that phase of the situation. But neither military nor Indian departments had legal authority to take any action whatsoever. As Johnson, in speaking of his inability to handle the situation for lack of sufficient power, declared in 1767 that "the authority of commissaries is nothing, and both the Commanding Officers of Garrisons and they, are liable to a civil prosecution for detaining a Trader on any pretence." [100] Probably more emphatic still the commanding general four years later in writing of the disturbances, said: "And I perceive there has been wanting judicial powers to try and determine. There has been no way to bring Controversys & Disputes properly to a determination or delinquenents to punishment." [101]

There is probably some justification for the current belief that the government placed the inhabitants under a military rule, inasmuch as the actual government proved in the last analysis to be military. But that the British ministry consciously attached the interior settlements to the military department is far from the truth. Such a system was probably contemplated by no one, particularly between the years 1763 and 1765 when the re-organization of the new acquisitions was under discussion. The greater part of the new territory was the seat of the fur trade and the desire for the development of that industry controlled in the main the policy of the ministry relative to the disposition of the peltry districts and the interests of the settlements were completely ignored. Secretary Hillsborough, who helped formulate the western policy in 1763 and 1764 doubtless gave the most adequate explanation when in 1769, he wrote: "With regard to the Posts in the interior Country considered in another view in which several of your letters have placed them; I mean as to the settlements formed under their protection, which, not being included within the jurisdiction of any other Colony are exposed to many Difficulties & Disadvantages from the Want of some Form of Government necessary to Civil Society, it is very evident that, if the case of these Settlements had been well known or understood at the time of forming the conquered Lands into Colonies, some provision would have been made for them, & they would have been erected into distinct Governments or made dependent upon those Colonies of which they were either the offspring, or with which they did by circumstances and situation, stand connected. I shall not fail, therefore, to give this matter the fullest consideration when the business of the Illinois Country is taken up." [102]

That the occupation of Fort Chartres became anything more than temporary was due to the necessity of being prepared to crush a possible uprising of the savages and to repel the constant invasion of the French and Spanish traders [103] from beyond the Mississippi, whose influence over the Indians, it was feared, would be detrimental to the peace of the empire. In its policy of retrenchment owing to the trouble with the colonies, the government at various times contemplated the withdrawal of the troops, but each time the detachment was allowed to remain the sole reason given was to guard that portion of the empire against the French and Indians.

In the course of this inquiry relative to the legal status of Illinois no mention has been made of the extension or non-extension of English law and custum to the West after its cession. This is one of the more important general aspects of the western problem and deserves some attention inasmuch as it may throw some light on the legal position of the settlements. During the seventeenth and eighteenth centuries, the great era of English colonization, the necessity of fixing definitely the legal status of the colonies called forth a series of judicial opinions and legal commentaries; it is to these we have to look to determine the theory held regarding the application of English law to the colonies and particularly to conquered provinces. In general it may be said that Blackstone represents the usual view taken by jurists during these two centuries. In his commentaries published in 1765 he declared that "in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws, but till he actually does change them, the ancient laws of the country remain. [104]" This opinion is supported by the authority of Lord Mansfield in his decision in the case of Campbell vs Hall, [105] rendered in 1774, which involved the status of the island of Granada, a conquered province. He laid down in this decision the general principle that the "laws of a conquered country continue in force until they are altered by the conquerer. The justice and antiquity of this maxim are incontrovertible:——" [106]

The Proclamation of 1763 which had definitely extended the laws of England to the new provinces, [107] made no such provisions for the West, nor did the crown ever take such action. We may, therefore, lay down the general principle that the British Government was obliged to govern her new subjects in this region according to the laws and customs hitherto prevailing among them; any other course would manifestly be illegal. The commanding general of the army in America and his subordinates, who were embarrassed by the presence of this French settlement for which no provision had been made by the ministry, and who found it necessary to assume the obligation of enforcing some sort of order in that country, had no power to displace any of the laws and customs of the French inhabitants. It will be pointed out in succeeding chapters that this general principle, while adhered to in many respects, was not uniformly carried out.

It is apparent from the foregoing considerations that the government of the Illinois people was de facto in nature. It had no legal foundations. Every action of the military department was based on expediency; although this course was in general acquiesced in by the home authorities, all the officials concerned were aware that such a status could not continue indefinitely. But it did continue for about a decade, during which time the inhabitants were at the mercy of some six or seven different military commandants. In 1774, however, Parliament passed the Quebec Act, which provided, among other things, for the union of all the western country north of the Ohio River, and which but for the cataclysm of the American revolution meant civil government for the whole region.