A Previously Unknown Document: Henry Clay’s Draft (and Final) of Article 9 of the Treaty of Ghent Ending the War of 1812, Removing Native Americans As a Beneficiary, Completely in Clay’s Hand

This document changed the face of Native American relations in the United States; with the English no longer supporting the tribes, future Indian wars would not be transformed into major international conflicts.

Purchase $35,000

Obtained by us from a descendant of William H. Crawford, senior U.S. ambassador in Europe who superintended all the consuls on the continent, and who was involved in the negotiations

The 1783 Treaty of Paris ending the American Revolution awarded the western frontier to the United States, but the British did not...

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A Previously Unknown Document: Henry Clay’s Draft (and Final) of Article 9 of the Treaty of Ghent Ending the War of 1812, Removing Native Americans As a Beneficiary, Completely in Clay’s Hand

This document changed the face of Native American relations in the United States; with the English no longer supporting the tribes, future Indian wars would not be transformed into major international conflicts.

Obtained by us from a descendant of William H. Crawford, senior U.S. ambassador in Europe who superintended all the consuls on the continent, and who was involved in the negotiations

The 1783 Treaty of Paris ending the American Revolution awarded the western frontier to the United States, but the British did not give up the idea of setting up a Native American buffer state between its holdings and the U.S. on that frontier. This hoped-for state would be shaped like a dagger and descend from the Canadian border on a line from the center point of Ohio west to the Mississippi River and reach to the far south of the Illinois Territory. It would act as a block to American immigration west, hinder U.S. use of the new Louisiana Purchase lands and the Mississippi River, discourage American trade in the west to the benefit of British merchants, set up an ally on the western border of the U.S., and make Canada safer from potential U.S. incursions.

By the late 1790s, from their forts in Ontario, the British were supplying and arming the Indians living in what is now the United States. By 1810 the Native Americans were ready to organize and were presenting a serious threat to American pioneers and interests. Two visionary Shawnee Indian leaders, Tecumseh and his brother The Prophet, realized that if US encroachment onto Indian land was ever to be stopped, this was the time. They rallied a broad Indian alliance to fight the white settlers. The alliance promised to sign over no more land to the whites, and the various tribes of the region promised to work together. The British were aiding and financing the Indian alliance from Canada. Though Tecumseh was defeated in Indiana by General William Henry Harrison in 1811, in 1812 threats of Indian uprisings remained a reality.

American trade was in a state of crisis by 1812. The British were seizing American ships on the high seas, and forcing seamen to join the Royal Navy or merchant navy.  This impressment of seamen was deemed necessary because of the difficulty in obtaining enough recruits in Britain. Americans considered this action as a violation of their sovereignty, a real slap in the face. In addition, Britain seized vessels bound for Europe that did not first call at a British port. The loss to the American economy was enormous.

Pushing for war in 1812 were the War Hawks, a group of prominent Congressmen mainly from the west and south, led by House Speaker Henry Clay, and also including John C. Calhoun. War was declared on June 17, 1812. But the U.S. was unprepared for the War of 1812, and the fortunes of war proved vacillating. There were successes, such as William Henry Harrison’s victory in the northwest in the Battle of the Thames, in which Tecumseh was killed, and Oliver H. Perry’s victory on Lake Erie. But there were also failures, such as Gen. James Wilkinson’s expedition against Montreal; also, Fort Niagara was lost, Black Rock and Buffalo were burned, and great quantities of provisions and stores destroyed. The American hope of conquering Canada began to look like a dream, and the threat remained that the British and their Indian allies might yet gain a hold over territory in the American west in order to create an Indian buffer state between the U.S. and the Mississippi River. The British blockade of the U.S. eastern seaboard was constantly growing more rigid; not a single American man-of-war was on the open sea. Meanwhile the discontent with the war prevailing in New England, which was destined to culminate in the Hartford Convention, continued to be active and to threaten rebellious outbreaks. But the most ominous event was the downfall of Napoleon’s prospects, the likely conclusion of peace in Europe, and, in consequence, the liberation of the military, naval, and financial resources of Great Britain for a vigorous prosecution of the war in America. In 1813 the Americans agreed to mediation to end the war, but the British declined and instead in early 1814 offered direct peace talks to be held at Ghent in Belgium. The U.S. accepted that offer.

The head of the American negotiating team was John Quincy Adams, the U.S.’s most experienced diplomat. The four men who served with him were carefully selected by President Madison to reflect the varieties of political sentiment in the United States. Foremost among them was Clay himself, the foremost War Hawk. Albert Gallatin had served as Secretary of the Treasury for both Thomas Jefferson and James Madison. James Bayard was a U.S. Senator belonging to the Federalist Party who had been an opponent of the war, and was one of the 13 Senators to vote against declaring it. However, once the war began he supported the war effort. Jonathan Russell was acting U.S. ambassador to Britain when war was declared. In addition to being a negotiator, he was also serving as ambassador to Sweden and Norway. He proved instrumental in achieving the final peace terms. The talks commenced in August 1814.

William H. Crawford was sent as U.S. ambassador to France in 1813, with orders to demand the repeal of the Berlin and Milan Decrees (put in place by Napoleon to attempt to strangle the British Islands, but in doing so interfering with U.S. commerce), to protest violations of American trading interests, and to attempt to negotiate a commercial treaty. During the peace negotiations, he was responsible for superintending the American consuls in Europe and keeping them informed of developments. More than that, he was an advisor to the President on the happenings on the Continent. As Ambassador to the Court of one of the two major adversaries in the conflicts in Europe, he was also actively involved in the Ghent negotiation process, advising the negotiators and responding to their confidential communiqués. He would later serve as Secretary of War and Secretary of the Treasury under Presidents Madison and Monroe.

At the start the U.S. negotiators had their instructions: the impressment of seamen and illegal blockades were the principal cause of the war,” which would “cease as soon as these rights are respected.” British cruisers must not be allowed to stop and search U.S. vessels, which practice “withholds the respect due our flag…It is expected that all American seamen who have been impressed will be discharged.” Another major object of the negotiations was to end the British blockades. “We also need to be assured that no further interference with our commerce” will take place. Next the instructions took up the question of the British arming and supplying the Indians. The article in the Treaty of 1794 “allowing “British traders from Canada and the North to trade with the Indian Tribes in the U.S., must not be renewed.” Nor must Britain continue to use native forces against “our Western States and Territories.” Thus, the U.S. negotiators must insist on an end to impressment, and ship seizures, and a stop to aiding the Indians in the American west.

As for the British, they had made big promises to the Indians in return for their support, so they initially demanded that the country now occupied by the states of Michigan, Illinois, and Wisconsin, the larger part of Indiana, and about one third of Ohio, should be set apart for the Indians. This would also act as a buffer, a perpetual protection of the British possessions against American ambition. They demanded also that the United States should relinquish the right of keeping any armed vessels on the Great Lakes; and, in addition to all this, they asked for the cession of a piece of Maine, and for the right of navigating the Mississippi River. The Americans rejected these demands out of hand, and actively considered going home at the end of August. They ended up staying, and over the coming weeks and months there discussions, sending of notes and replies, references of disputed points by the British commissioners to their Foreign Office in London, and long waiting for answers.

In November the American negotiators submitted a draft treaty. The British approved most of the articles in the draft, but disputes remained with regard to the British right to the navigation of the Mississippi, the American right to fish in British waters off Canada, and the text relating to Indian lands. Since British support for the Indians was a main reason U.S. War Hawks wanted the conflict, the Americans were adamant on conceding nothing to the Indians. And now that peace was in the offing and the government in London (and the Duke of Wellington) wanted it sooner rather than later, the British were prepared to abandon their promises to the Indians of not agreeing to a treaty without taking their interests into account. But suitable language must be found to provide them cover.

The American team had four attorneys – Adams, Clay, Russell and Bayard – and they had no trouble in coming up with a text that would make the British appear to be taking the Indian into account, while leaving the Americans to do as they wanted in the west. The key was the word “may”, as the article awarded the Indians the “possessions, rights, and privileges which they may have enjoyed or been entitled to” in 1811. Since each side could bring its own interpretation of the meaning of “may”, it was the perfect lawyer’s solution. The British accepted this, and it became Article 9 of the treaty.

After the War of 1812, the United States negotiated more than 200 treaties with Indian nations that involved ceding land, 99 of those resulted in the creation of reservations west of the Mississippi River.  In exchange for the United States leaving Canada alone, Britain stopped supporting the American Indians in its fight against the encroaching settlers. Without was materiel and other aid from European allies, future Indian wars were transformed from major international conflicts to domestic mopping-up operations. In addition, Tecumseh’s defeat at the Battle of Thames in Canada in 1813 was the beginning of the end for Native nations. Tecumseh was mortally wounded and with his death his confederacy fell apart, as did his vision of driving back the white settlers.

The final Article 9 of the Treaty of Ghent, relating to Native Americans, completely in the hand of Henry Clay

Autograph manuscript signed, Ghent, December 1814, sent to Crawford as chief U.S. ambassador in Europe.  “The United States of America engage to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against the United States of America, their Citizens, and Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly. And His Britannic Majesty engages on his part to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom He may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against His Britannic Majesty and His Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.”

The treaty was signed December 24, 1814. The fundamental basis of the peace: stop the war with few preconditions, and leave the other issues between the two nations to further negotiations in peacetime in the future. But in addition to the written provisions of the treaty, there were unwritten understandings of enormous significance. This made the Treaty of Ghent one of the most important ever signed by the United States. The United States gave up its designs on Canada, which left Britain free to cease looking over its shoulder at North America. It could concentrate its efforts elsewhere. In return, Britain stopped supporting the Indians in the “buffer state” in their fight against the encroaching Americans. Their withdrawal was the death knell to the Indian’s efforts; and they were the true losers in the war. The way to the American west was now open, the great impediment removed. The United States gained in another way – domestically – as the turning away from old enemies and issues led to the molding of a separate American future. The war’s end unified the country and led to the Era of Good Feeling. As Albert Gallatin said,“They are more Americans; they feel and act more as a nation”. It let loose a burst of energy in emigration, commerce and invention that changed the face of the country.

This manuscript was acquired by us from a direct descendant of William H. Crawford, and it has never before been offered for sale.

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