Part 26

Doubts in respect to the particular river intended to be understood by the name of the St. Croix having arisen, an article was inserted in the treaty of commerce signed in London in November, 1794, by Lord Grenville on the part of Great Britain and by John Jay on the part of the United States. This article, the fifth of that treaty, provided for the appointment of a joint commission with full powers to decide that question. This commission was constituted in conformity, and the award was accepted by both Governments. The river designated in this award became thenceforth the true St. Croix, however erroneous may have been the grounds on which it was decided so to be. When, therefore, in the fourth article of the treaty of Ghent it is declared that the due north line from the source of the St. Croix has not been surveyed, and when in this and the other articles of the same treaty all other uncertain parts of the boundary are recited, the validity of the decision of the commissioners under the fifth article of Jay's treaty is virtually acknowledged. Nay, more; the acknowledgment is completed by the stipulation in the second article of the treaty of Ghent that "all territory, places, and possessions taken by either party during the war," with certain exceptions, shall be forthwith restored to their previous possessors. The only exceptions are the islands in Passamaquoddy Bay; and had it been believed that any uncertainty in respect to the adjacent territory existed it would not have been neglected. Nay, more; all the settlements lying within the line claimed by Great Britain before the commission created by the treaty of 1794 had been taken, and were in her actual possession at the time the treaty of Ghent took effect, and were forthwith restored to the jurisdiction of the United States. When, also, it became necessary to proceed to the investigation of the second point of the discussion, the agents and surveyors of both parties proceeded as a matter of course to the point marked in 1798 as the source of the St. Croix. This point is therefore fixed and established beyond the possibility of cavil, and the faith of both Governments is pledged that it shall not be disturbed.

II.--DUE NORTH LINE FROM THE SOURCE OF THE ST. CROIX.

The treaty of 1783 provides that the boundary from the source of the St. Croix shall be drawn "directly north." In relation to this expression no possible doubt can arise. It is neither susceptible of more than a single meaning nor does it require illustration from any extrinsic source. The undersigned, therefore, do not consider that so much of the argument of Messrs. Mudge and Featherstonhaugh as attempts to show that this line ought to be drawn in any other direction than due north requires any reply on the part of the United States. Admitting that the words had been originally used as a mistranslation of terms in the Latin grant of James I to Sir William Alexander, the misconception was equally shared by both parties to the treaty of 1783; and it will be shown hereafter that this misconception, if any, had its origin in British official papers. Were it capable of proof beyond all possibility of denial that the limit of the grant to Sir William Alexander was intended to be a line drawn toward the northwest instead of the north it would not affect the question. So far as that grant was used by American negotiators to illustrate the position of the northwest angle of Nova Scotia it would have failed to fulfill the object, but such failure in illustration does not involve the nullity of the treaty itself.

That the translation which has hitherto been universally received as correct of the terms in the grant to Sir William Alexander is the true one, and that the new construction which is now attempted to be put upon it is inaccurate, will be shown in another place, where will also be exhibited an error committed in rendering the sense of another part of that instrument. The consideration of the correctness or incorrectness of the several translations can form no part of the present argument. While, therefore, it is denied that Messrs. Mudge and Featherstonhaugh have succeeded in showing that the grant to Sir William Alexander has been mistranslated, it is maintained that an error in the translation of this document can have no effect in setting aside the simple and positive terms of the treaty of 1783. That treaty and its confirmation in the treaty of Ghent must be admitted to be null and void before that line can be drawn in any other direction than "due north."

III.--NORTH WEST ANGLE OF NOVA SCOTIA.

The term northwest angle of Nova Scotia was used in the secret instructions of Congress and is adopted in the treaty of 1783. In the instructions it is named without any explanation, as if it were a point perfectly well known. In one sense it was so, for although it never had been marked by a monument, nor perhaps visited by the foot of man, its position could be laid down upon a map; nay, was so on many existing maps, and the directions for finding it on the ground were clear and explicit. These directions are to be found in the royal proclamation of October, 1763, and in the commission to Montague Wilmot, governor of Nova Scotia, of cotemporaneous date. Any uncertainty in regard to the position of this angle which may have existed in relation to the meaning of the first of these instruments is removed by the act of Parliament of 1774, commonly called the Quebec act.

Before citing these instruments it will be proper to refer to the circumstances under which the two first were issued.

Great Britain, after a successful war, found herself in possession of the whole eastern side of the continent of North America. So much of this as lay to the south of the St. Lawrence and the forty-fifth parallel of north latitude had been previously made the subject of charters from the British Crown under a claim of right from priority of discovery. The possession of this wide tract was not uncontested, and various other European nations had attempted to found settlements within the limits of the British charters. In such cases it was held as a matter of law that where the occupation or defense of the territory granted had been neglected the right had ceased, and the country, when recovered by conquest or restored by treaty, was again vested in the Crown, to be made the subject of new grants or governed as a royal colony. Thus, when the settlements made by the Dutch and Swedes, which by the fortune of war had become wholly vested in Holland, were reduced, the Crown exercised its rights by conveying them to the Duke of York, although covered in a great part, if not wholly, by previous charters; and when these countries were again occupied by the Dutch and restored by the treaty of Breda it was thought necessary that the title of the Duke of York should be restored by a fresh grant. In both of these charters to that prince was included the Province of Sagadahock, within whose chartered limits was comprised the territory at present in dispute. This Province, confined on the sea between the rivers St. Croix and Kennebec, had for its opposite limits the St. Lawrence, or, as the grant expresses it, "extending from the river of Kenebeque and so upward by the shortest course to the river Canada northward." The shortest course from the source of the Kennebec to the St. Lawrence is by the present Kennebec road. This grant therefore covered the whole space along the St. Lawrence from about the mouth of the Chaudiere River to the eastern limit of the grant to Sir William Alexander. By the accession of James II, or, as some maintain, by the act of attainder, it matters not which, this Province reverted to the Crown, and was by it granted, in 1691, to the colony of Massachusetts. In the same charter Nova Scotia also was included. This has been called a war grant, as in fact it was, and the colony of Massachusetts speedily availed themselves of it by conquering the whole of the territory conveyed except the island of Cape Breton. The latter, too, fell before the unassisted arms of the New England Provinces in 1745, at a time when Great Britain was too deeply engaged in the contest of a civil war to give aid either in money or in men to her transatlantic possessions.

The colony of Massachusetts, therefore, could not be charged with any want of energy in asserting her chartered rights to the territory in question. It is, in fact, due to her exertions that both Nova Scotia and New Brunswick came at so early a period into the possession of the British Crown. In 1654 the French settlements as far as Port Royal, at the head of the Bay of Fundy, were reduced by Major Sedgwick, but by the treaty of Breda they were restored to France.

In 1690 Sir William Phips, governor of Massachusetts, with a force of 700 men, raised in that colony, again conquered the country, and although on his return the French dislodged the garrison possession was forthwith resumed by an expedition under Colonel Church. Acadie, however, or Nova Scotia, was ceded again to France by the treaty of Ryswick. After several spirited but unsuccessful attempts during the War of the Succession, General Nicholson, with a force of five regiments, four of which were levied in Massachusetts, reduced Port Royal, and by its capitulation the present Provinces of Nova Scotia and New Brunswick were permanently annexed to the British Crown. Finally the militia of Massachusetts, during the War of 1776, took possession of the territory, and occupied it until the date of the treaty of 1783. This occupation was not limited by the St. Croix, or even by the St. John, but included the whole of the southern part of New Brunswick, while the peninsula of Nova Scotia was only preserved to Great Britain by the fortification of the isthmus which unites it to the mainland.

The recession of Acadie, or Nova Scotia, to France by the treaty of Ryswick divested Massachusetts only of the territory granted her in the charter of 1691 under the latter name. Her war title to Sagadahock was confirmed by a conquest with her own unaided arms; and even the cession of Nova Scotia was a manifest injustice to her, as she was at the moment in full possession of it. It, however, suited the purpose of Great Britain to barter this part of the conquest of that colony for objects of more immediate interest.

Admitting that England did convey a part or the whole of Sagadahock to France under the vague name of Acadie or Nova Scotia, the conquest by Massachusetts in 1710 renewed her rights to this much at least, and although the Crown appropriated to itself the lion's share of the spoils by making Nova Scotia a royal province, it did not attempt to disturb her possession of Sagadahock. So far from so doing, the commission of the royal governors was limited to the west by the St. Croix, although it was stated in a saving clause that the Province of Nova Scotia extended of right to the Penobscot. From that time until the breaking out of the Revolutionary War, a space of more than sixty years, the Province of Sagadahock was left in the undisturbed possession of Massachusetts under the charter of 1691.

In defiance of this charter the French proceeded to occupy the right bank of the St. Lawrence, which at the time of the capture of Quebec and the cession in the treaty of 1763 was partially held by settlements of Canadians. The Crown therefore acted upon the principle that the right of Massachusetts to the right bank of the St. Lawrence had thus become void, and proceeded by proclamation to form the possessions of France on both banks of the St. Lawrence into a royal colony under the name of the Province of Quebec.

This was not done without a decided opposition on the part of Massachusetts, but any decision in respect to her claims was rendered needless by the breaking out of the War of Independence. It is only proper to remark that this opposition was in fact made and that her claim to the right bank of the St. Lawrence was only abandoned by the treaty of 1783. The country of which it was intended to divest her by the proclamation of 1763 is described in a letter of her agent, Mr. Mauduit, to the general court of that colony as "the narrow tract of land which lies beyond the sources of all your rivers and is watered by those which run into the St. Lawrence."

It is assigned by him as a reason why the Province of Massachusetts should assent to the boundary assigned to the Province of Quebec by the proclamation that "it would not be of any great consequence to you" (Massachusetts), "but is absolutely necessary to the Crown to preserve the continuity of the Province of Quebec." The part of the Province of Quebec whose continuity with the rest of that colony was to be preserved is evidently the district of Gaspe, of which Nova Scotia, a royal colony, was divested by the same proclamation. For this continuity no more was necessary than a road along the St. Lawrence itself, and the reason would have been absurd if applied to any country lying beyond the streams which fall into that river, for up to the present day no communication between parts of Canada exists through any part of the disputed territory. The narrow territory thus advised to be relinquished extends, according to the views of Messrs. Mudge and Featherstonhaugh, from the Great Falls of the St. John to Quebec, a distance in a straight line of 160 miles. It has a figure not far from triangular, of which this line is the perpendicular and the shore of the St. Lawrence from the Chaudiere to the Metis the base. It contains about 16,000 square miles. It would have been a perversion of language in Mr. Mauduit to describe this to his employers as a narrow tract. But the space whose cession he really intended to advise is in every sense a narrow tract, for its length along the St. Lawrence is about 200 miles, and its average breadth to the sources of the streams 30. It contains 6,000 square miles, and is described by him in a manner that leaves no question as to its extent being "watered by streams" which "run into the St. Lawrence." It therefore did not include any country watered by streams which run into the St. John.

It is believed that this is the first instance in which the term narrow has ever been applied to a triangle almost right angled and nearly isosceles, and it is not a little remarkable that this very expression was relied upon in the statement to the King of the Netherlands as one of the strongest proofs of the justice of the American claim.

Admitting, however, for the sake of argument, that the Crown did demand this territory, and that the mere advice of an agent without powers was binding on Massachusetts, the fact would have no direct bearing upon the point under consideration. The relinquishment by Massachusetts of the whole of the territory west of the meridian of the St. Croix would not have changed the position of the northwest angle of Nova Scotia, nor the title of the United States collectively under the treaty of 1783 to a boundary to be drawn from that angle, however it might have affected the right of property of that State to the lands within it.

And here it is to be remarked that the Government of the United States is two-fold--that of the individual States and that of the Federal Union. It would be possible, therefore, that all right of property in unseated lands within a State's jurisdiction might be in the General Government, and this is in fact the case in all the new States. Even had Massachusetts divested herself of the title (which she has not) the treaty of 1783 would have vested it in the Confederation. She had at least a color of title, under which the Confederation claimed to the boundaries of Nova Scotia on the east and to the southern limits of the Province of Quebec on the north, and this claim was allowed by Great Britain in the treaty of 1783 in terms which are at least admitted to be identical in meaning with those of the proclamation creating the latter Province.

To illustrate the subject further:

Of the seventeen British colonies in North America, thirteen succeeded in asserting their independence; the two Floridas were conquered and ceded to Spain; while of her magnificent American domain only Quebec and Nova Scotia were left to Great Britain. The thirteen colonies, now independent States, claimed all that part of the continent to the eastward of the Mississippi and north of the bounds of Florida which was not contained within the limits of the last-named colonies, and this claim was fully admitted by the boundary agreed to in the treaty of 1783. Within the limits thus assigned it was well known that there were conflicting claims to parts which had more than once been covered by royal charters; it was even possible that there were portions of the wide territory the right to which was asserted by the United States and admitted by Great Britain that had not been covered by any royal grant; but the jurisdiction in respect to disputed rights and the title to land not conveyed forever ceased to be in the British Crown--first by a successful assertion of independence in arms, and finally by the positive terms of a solemn treaty.

If it should be admitted, for argument's sake, that the claim of Massachusetts, as inherited by the State of Maine, to the disputed territory is unfounded, it is a circumstance that can not enter into a discussion between Great Britain and the United States of America. Massachusetts did claim, under at least the color of a title, not merely to "the highlands," but to the St. Lawrence itself, and the claim was admitted as far as the former by the treaty of 1783. If it should hereafter appear that this claim can not be maintained, the territory which is not covered by her title, if within the boundary of the treaty of 1783, can not revert to Great Britain, which has ceded its rights to the thirteen independent States, but to the latter in their confederate capacity, and is thus the property of the whole Union. As well might Great Britain set up a claim to the States of Alabama and Mississippi, which, although claimed by the State of Georgia, were found not to be covered by its royal charter, as to any part of the territory contained within the line defined by the treaty of 1783, under pretense that the rights of Massachusetts are not indefeasible.

While, therefore, it is maintained that whether the title of Massachusetts be valid or not is immaterial to the present question, it may be further urged that not even the shadow of a pretense existed for divesting her of her rights by the proclamation of 1763, except to territory which by neglect she had permitted France to occupy. On this point the French are the best authority, for it can not be pretended that the Crown of England intended in forming the Province of Quebec to go beyond the utmost limits of the claim of France to her colony of Canada. The assertions on the part of France in the argument preceding the War of 1756 were:

First. That both banks of the St. Lawrence are included in Canada.

Second. That with the exception of Miscou and Cape Breton, her grants extended 10 leagues from the river.

Third. That the commissions of the governors of Canada in the most formal and precise manner extended their jurisdiction to the sources of the rivers which discharge themselves into the St. Lawrence.

Now the distance of 10 French leagues and that of the sources of the rivers, on an average, are nearly identical, and this narrow tract, of which alone the Crown could with any shadow of justice assume the right of disposing, is that of which Massachusetts was intended to be divested by the proclamation of 1763.

It was because Great Britain held that these claims on the part of France were too extensive that the War of 1756 was waged. In this war at least one-half of the force which under Wolfe took Louisburg and reduced Quebec, and under Amherst forced the French armies in Canada to a capitulation, was raised and paid by the colonies. The creation of the Province of Quebec, covering a part of their chartered limits, was therefore a just subject of complaint.

The bounds assigned to the new Province of Quebec to the south by the proclamation of 7th October, 1763, are as follows: