Remarks on the Plan for Regulating the Indian Trade, [September 1766-October 1766]
Remarks on the Plan for Regulating the Indian Trade
Draft: Library of Congress
During June 1764 the Board of Trade had spent considerable time and effort preparing a “Plan for the Future Management of Indian Affairs,” and on June 15 it ordered that copies be sent for comment to the superintendents of Indian affairs and the royal governors on the North American continent.4 On July 10 drafts of the Board’s explanatory letters to these officials were read and approved for signature. The Plan to which the letters referred has consequently been usually cited by this date: July 10, 1764.5
Sir William Johnson sent back an article-by-article commentary on this Plan with an accompanying letter dated October 8, and several governors also wrote their opinions.6 The Board of Trade read these communications and from time to time considered doing something with the Plan, but never carried the discussions beyond the point of talk.7 In the autumn of 1766, when Lord Shelburne had taken office as secretary of state for the Southern Department, he became definitely interested in placing the management of Indian affairs on a more systematic and effective footing. As one move toward this end he asked Franklin and Richard Jackson to examine the Plan of July 10, 1764, and submit to him their comments.
Just when Franklin prepared the draft “Remarks” printed below is not certain, but the date can be approximated. He wrote his son William on September 12 that he was to have a conference with Shelburne the following Tuesday, that is on the 16th; on October 11 he told Galloway that he had “occasionally had several Conferences lately” with the secretary of state.8 On the second page of this draft (now transferred to near its start) he jotted down several memoranda of “Things to be mentioned to Lord Shelbourne,” that had come to Franklin’s attention in recent months. It seems highly probable, therefore, that this paper represents the draft of a document he planned to present to Shelburne during one of their “several Conferences” in September and October 1766. Jackson, who was out of town during the early autumn, dated his report in November 1766.9
The Plan on which Franklin was commenting consisted of forty-three numbered paragraphs or articles, and a final unnumbered one on financial matters to which Franklin referred in his comment as “44.” He discussed less than a third of the articles, but these he examined with complete freedom. Characteristically, he seemed most interested in the workability and practical operation of the arrangements and regulations proposed. To make his remarks as intelligible as possible, each of his comments is preceded by a summary (or occasionally a direct quotation), set in brackets, of the corresponding article of the Board of Trade’s Plan.
[September–October 1766]
Remarks on the Plan for Regulating the Indian Trade
Written at the Request of Lord S.
The Regulations in this Plan seem to me to be in general very good; but some few appear to want Explanation, or farther Consideration.1
Things to be mentioned to Lord Shelbourne.
Map of proposed Colony2
Demand of Traders who suffered before the first War, and at breaking out of the second.3
Att[orne]y Generel of Virg[ini]a.4
Petitions relative to Gov[ernmen]t of Pennsylvania Paper Currency5
—— Islands in Delaware6
—— Mr. Croghan’s Demand7
Mr. Cox’s Demand.8
[3. No trade to be allowed with Indians in Southern District except in towns belonging to tribes included in the district, and in the Northern District trade is to be fixed “at so many Posts and in such Situations” as thought necessary.]
3. Is it intended by this Clause to prevent the Trade that Indians living near the Frontiers may chuse to carry on with the Inhabitants by bringing their Skins into the Settlements? This Prevention is hardly practicable, as such Trade may be carried on in many Places out of the Observation of Government, the Frontier being of great Extent, and the Inhabitants thinly settled in the Woods remote from each other. The Indians too do not every where live in Towns sufficiently numerous to encourage Traders to reside among them, but in scattered Families here and there often shifting their Situation for the sake of better Hunting; and if they are near the English Settlements It would seem to them very hard to be obliged to carry their Skins for Sale to remote Towns or Posts, when they could dispose of them to their Neighbours with less Trouble and to greater Advantage, as the Goods they want for them are and must be dearer at such remote Posts.9
[4. “That all Laws now in Force in the Several Colonies for regulating Indian affairs or Commerce be repealed.” ]
4. Those Laws are the Result of long Experience, made by People on the Spot interested to make them good, and it seems they should be well considered before they are repealed to make way for new untried Schemes.
By whom are they to be repealed? By the Colony Assemblies? or by Parliament? Some Difficulty will arise here.1
[13. No order to be issued by the governor or by an officer with military command of any fort in the Indian country for stopping the trade with any tribe in either district without the concurrence or consent of the agent or superintendent for Indian affairs in the district.]
13. The Districts seem too large for this. The Indians under the Care of the Northern Superintendant border on the Colonies of N Scotia, Quebec, New Hampshire Massachusets, Connecticut New York, New Jersey, Pensilvania, Maryland, Virginia. The Superintendents Residence remote from several of these may occasion great Inconvenience, if his Consent is always to be necessary in such Cases.2
[14. The agents or superintendents or their deputies are to visit all the posts or tribes in their districts once a year or oftener to take account of the behavior of their subordinates, to hear appeals or redress complaints of the Indians, to make proper presents, and transact all affairs relating to the Indians.]
14. This seems too much to be done, when the Vastness of the District is considered. If there were more Districts and smaller this might be more practicable.
[15. That the agents or superintendents and the commissaries at each post be empowered to act as justices of the peace with all usual powers and also authority to commit offenders in capital cases. In civil actions the commissaries may try “in a summary way” disputes between traders and Indians or between traders, up to £10 sterling, with liberty of appeal to the agent or superintendent or his deputy, whose judgment is final. 16. The evidence given by Indians is to be accepted under proper regulations in all criminal and civil cases as above, and admitted by courts of justice in the colonies in criminal cases under the normal rules concerning false evidence.]
15 and 16. Are these Agents or Commissaries to try Causes where Life is concerned? Would it not be better to send the Criminals into some civil Government for Trial, where good Juries can be had?3
[18. The Indians in each town of every tribe in the Southern District are to choose a “Beloved Man” to be approved by the agent or superintendent and to take care of the mutual interests of Indians and traders of the town. These “Beloved Men” of the tribe’s towns are to elect “a Chief for the whole Tribe who shall Constantly reside with the Commissary in the country of each Tribe, or occasionally attend” on the agent or superintendent, as guardian of the Indians and protector of their rights. The chief is to be entitled to be present at all hearings or trials relating to the Indians before the agent, superintendent, or commissary, and give his opinion on all matters under consideration.]
18. Chief for the whole Tribe who shall constantly reside with the Commissary, &c. Provision must then be made for his Maintenance, as particular Indians have no Estates but live by Hunting, and their Public has no Funds. Being us’d to Rambling, it would perhaps not be easy to find one, who would be oblig’d to this constant Residence.
[22. The agent or superintendent and the commissaries are to take oath before a governor or chief judge of a colony in their district for the due execution of their trust. They and all subordinate officers are to be forbidden under proper penalties to carry on any trade, personally or in trust for others, or to accept any grants of land from the Indians.]
22. If the Agent and his Deputies and the Commissaries are not to trade, should it not be a Part of their Oath, that they will have no Concern in such Trade directly or indirectly? Private Agreements between them and the Traders for Share of Profits should be guarded against. And the same between them and Purchasers of Lands from Indians.4
[31. Persons trading with the Indians without a license and without previously giving security as required in an earlier section of the plan, “or trading at any other posts or places than those expressed in their licenses,” are to forfeit the goods they are found trading with, pay a fine, and suffer imprisonment.]
31. or trading at any other Post, &c. This should be so express’d as to make the Master liable for the Offence of the Servant; otherwise it will have no Effect.5
[33. All trade with the Indians to be carried on by tariffs settled by the commissaries at the posts or truckhouses or in the countries of the tribes, in concert with the traders and Indians.]
33. I doubt the Settling such Tariffs will be a matter of Difficulty. There may be Differences of Fineness, Goodness and Value in the Goods of different Traders, and the like in the Peltry of different Indians, that cannot be properly allow’d for by general Tariffs: It seems contrary to the Nature of Commerce for Government to interfere in the Prices of Commodities. Trade is a voluntary Thing between Buyer and Seller, in every Article of which each exercises his own Judgment and is to please himself. Suppose either Trader or Indian is dissatisfied with the Tariff, and refuses to barter on those Terms: Are the Refusers to be compell’d? If not, Why should an Indian be forbidden to take more Goods for his Skins than your Tariff allows if the Trader is willing to give them; or a Trader more Skins for his Goods if the Indian is willing to give them? Where there are a number of different Traders, the separate Desire of each to get most Custom will operate in bringing their Goods down to a reasonable Price. It therefore seems to me, that Trade will best find and make its own Rates. And that Government cannot well interfere, unless it would take the whole Trade into its own Hands, as in some Colonies it does, and manage it by its own Servants at its own Risque.6
[38. “That no Trader shall sell or otherwise supply the Indians with Rum or other spirituous Liquors, Swan Shot or riffled Barrell’d Guns.” ]
38. I apprehend that if the Indians cannot get Rum of fair Traders, it will be a great Means of defeating all these Regulations that direct the Trade to be carried on at certain Posts. The Country and Forests are so very large it is impossible to guard every Part, so as to prevent unlicens’d Traders drawing the Indians and the Trade to themselves by Rum, and other Spirituous Liquors which all savage People are so fond of. I think they will generally trade where they can get Rum preferably to where it is refus’d them; and the propos’d Prohibition will therefore be a great Encouragement to unlicens’d Traders, and promote such Trade. If the Commissaries or Officers at the Posts can prevent the Selling of Rum during the Barter for other Goods, and until the Indians are about going away, it is perhaps all that is practicable or necessary. The Missionaries will doubtless among other things endeavour to prevail with them to live soberly and avoid Drunkenness.7
[39. In Indian trade no credit to be given for goods beyond the value of 50 shillings, and no debt for a larger amount shall be recoverable by law or equity.]
39. The Indian Trade so far as Credit is concerned has hitherto been carried on wholly upon Honour: They have among themselves no such Thing as Prisons or Confinement for Debt. This Article seems to imply that an Indian may be compelled by Law to pay a Debt of 50s. or under. Our legal Method of Compulsion is by Imprisonment. The Indians cannot and will not imprison one another, and if we attempt to imprison them, I apprehend it would be generally dislik’d by the Nations, and occasion Breaches. They have such high Ideas of Personal Liberty, and such slight ones of the Value of personal Property, that they would think the Disproportion monstrous between the Liberty of a Man and a Debt of a few Shillings and that it would be excessively inequitable and unjust to take away the one for a Default in Payment of the other. It seems to me therefore best to leave that Matter on its present Footing, the Debts under 50s. to be as irrecoverable by Law as this Article proposes for the Debts above 50s. Debts of Honour are generally as well paid as other Debts. Where no Compulsion can be used, it is more disgraceful to be dishonest. If the Trader thinks his Risque greater in trusting any particular Indian, he will either not do it, or proportion his Price to his Risque.8
[44 (Actually unnumbered in the Plan). The estimated annual expense of supporting the proposed establishment, providing presents, and meeting other contingencies, is £20,000. It is proposed to defray this charge by a duty on the Indian trade: either as an export duty on skins or furs, or payable by the traders at the trading posts, whichever may be determined on further inquiry to be most practicable and least burdensome to trade.]
44. As the Goods for Indian Trade all go from England, and the Peltry is chiefly brought to England perhaps it will be best to lay the Duty here on the Exportation of the one, and the Importation of the other and avoid meddling with the Question of Right to lay Duties in America by Parliament here.9
If it is thought proper to carry this Plan into Execution, would it not be well to try it first in a few Posts to which the present Colony Laws of Indian Trade do not reach, that by Experience its Defects may be discovered and amended before it is made general and those Laws repealed to make way for it?
If the Indians find by Experience that they are better us’d in their Trade at the Posts under these Regulations, than at other Places may it not make them desirous of having the Regulations extended to other Places, and when extended better satisfy’d with them upon Reflection and Comparison.1
4. Board of Trade Journal, 1764–1767, pp. 65–71.
5. Ibid., p. 98. The Board’s letter to Sir William Johnson is in Documents Relative to the Colonial History of the State of New York, vii (Albany, 1856), 634–6. The Plan is printed: ibid., pp. 637–42; Adam Shortt and Arthur G. Doughty, eds., Documents Relating to the Constitutional History of Canada, i (Ottawa, 1907), 433–7; and Clarence W. Alvord and Clarence E. Carter, eds., The Critical Period, pp. 273–81.
6. Board of Trade Journal, 1764–1767, p. 149. The text of Johnson’s comments is printed in N.Y. Col. Docs., vii, 661–6; and Alvord and Carter, eds., Critical Period, pp. 327–42.
7. On Jan. 16, 1766, while the repeal of the Stamp Act was being considered, the Board of Trade agreed “that it would be advisable in the present state and situation of American affairs to postpone any representation” on the Plan. Previously the Board had considered the matter in February and March 1765. Board of Trade Journal, 1764–1767, pp. 149, 162, 244.
8. See above, p. 415, and below, p. 447.
9. See below p. 486. Jackson’s comments on this and other schemes are printed in Clarence W. Alvord and Clarence E. Carter, eds., The New Régime, pp. 422–30.
1. The first page of the draft begins with the heading as printed above and then proceeds directly to the comment on Article 3, which occupies the rest of the page. This obviously introductory sentence and the memoranda that follow here appear on the back of the first page, following a cancelled comment on Article 10. The remarks on Article 4 begin at the top of the third page. It seems clear that, although BF set down this sentence and the memoranda at a later time, he intended to place this opening sentence, at least, directly after the heading in his final copy. For convenience the memoranda are also placed before the comments on particular articles.
2. The proposed colony in the Illinois country in which Johnson, the Whartons, the Franklins, and others were interested.
3. The hopes of the “Suffering Traders” for compensation in land cessions by the Indians have been referred to in several letters from the Whartons in this and the previous volume.
4. For George Wythe’s hope that BF would help him get appointed attorney general of Virginia, see above, p. 321.
5. On the Pa. Assembly’s concern for paper currency, as well as BF’s, see above, pp. 51 n, 204–7.
6. see above, XII, 219 n. Nothing seems to have been done about the possible grant of these islands during the past year.
7. For the uncertain nature of George Croghan’s “Application” or “Demand,” see above, p. 257 n.
8. It is uncertain whether this note refers to William, Daniel, or John Coxe, all of whom had some sort of claims to be pressed with the home government and would have been glad of BF’s help.
9. Here as in several later instances Sir William Johnson, who favored tight control of the Indian trade, approved a proposal that BF criticized as too constricting.
1. Johnson declared that “Nothing can be more Necessary” than the repeal of these laws, thereby placing Indian affairs more directly under the Crown and the Crown-appointed superintendent—himself. Jackson, like BF, strongly opposed such a sweeping repeal. In his draft BF entered a comment on Article 10, which he later struck out. This article conferred almost complete power of conducting Indian affairs on the agent or superintendent, excluding the governors or military commanders, except “in case of great Exigency” or when the superintendent was too far away. BF wrote: “10. Will not this Clause interfere with the Charter to some of the Colonies, who are impowered to make Peace and War with the Natives, &c.” His cancellation indicates that he had second thoughts about making this criticism.
2. Johnson highly approved this article, as might be expected. Jackson did not comment on it.
3. Johnson wanted greater judicial powers for the superintendent or his deputy and he wanted the court evidence of Indians restricted to those who by religion or experience really understood the nature of an oath. It is perhaps surprising that Jackson, the barrister, had no comments on these two articles.
4. Johnson had no objection to this proposal but took occasion to declare that he had never been involved in acquiring any land from the Indians. Jackson commented cynically: “A Man must know very little of the Administration of publick affairs in any part of Europe to rely upon the Oaths of officers in any degree.”
5. Neither Johnson nor Jackson spotted this loophole in the proposal.
6. Johnson strongly supported the idea of tariffs; Jackson, agreeing with BF, called a trade carried on by such a method, when buyers and sellers were numerous, “little better than a Solecism.”
7. Johnson opposed any sale of rifles to the Indians, but like BF he had strong doubts about the complete prohibition of the sale of rum.
8. Johnson opposed the granting of credit beyond 50s. to Indians, but had nothing to say about how smaller debts were to be recovered from Indians. Jackson offered no useful comment here.
9. Johnson offered here an elaborate and lengthy scheme for raising the necessary money. Jackson declared flatly that if the duty was to be levied at the posts, it would “of itself, probably overthrow the Regulations for obvious Reasons.” He thought very little of the plan as a whole and disliked giving the King’s officers so much power. He then went on to prophesy the gradual elimination of the Indian problem in much the way it has come about over large parts of the United States.
1. This Plan was never put into operation even experimentally.