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X HE ])eriod of the determination of the great question now pending between Great Britain and the United States of America, concerning tiie Boundary Line, wliich is hereafter to separate tlie Colonial possessions ot tlit- former from the territories of the latter, in the long tract of country stretclnng from the head of the Connecticut River to the Bay of Fundy, is now fast approaching, and mens' minds in this Province begin, at hist, to be awakened to the important effects which the determination, liowever given, must have upon the future fates of tlie country. Much that is well worthy of perusal has already been written in support of the right of Great Britain to the territory in dispute. There is, however, one part of (he subject which, it wouhl seem, has not been so fully treated as would have been desirable ; — i mean that part which relates to the controversies which, from time to time, arose respecting this Boundarv Line between the Eniflish and French pos-iessions, whilst Canada belonged to the crown of France, and the treaties by which those controversies were settled. A notion has been adopted by many, otherwise well informed men, that in the present dlscnssions between Great Britain and the United States of America, the positions to be maintained by Great Britain, are the same as those which France heretofore maintained without success. Now, altliough it be true that the present controversy cannot be rightly understood without a know- ledge of the history of the controversies which preceded it, still it differs essentially from the anterior controversies. Conflicting titles are produced, and adverse possession set up on the one side and on the other. In investigating these opposite lines of title, we cannot be certain of understanding the last title without first understanding that which immediately precedes it, and so back until we reach the first link of the chain, and with this we ought to begin. The chronological order, always an useful aid to the memory, cannot here be inverted without prejudice to the judgment, nor can a single link of the chain be with safety omitted. This dry and humble, but necessary inquiry, can probably be no where conducted with so much advantage as in this country. It is intimately connected with the early history of the Colony, and this must be sought for in ancient travels and original documents, possessing no where else the same interest, and no where else so easily accessible. The French settlements upon the North American Continent long preceded those of England. In 1506, Jean Denys, of Honfleur,* published a chart of the coast of Newfoundland, and in 1508, a savage was conveyed by a pilot of Dieppe, to France. But the first of all the voyages made to North America with the view of effecting settlements there, was unquestionably that of the Baron de Lery and de St. Just, in 15l8.t He landed cattle upon Sable Island in this voyage, whilst it was more than a hundred years afterwards (A. D. 1621) that cattle were first conveyed to New England. | * Pastes thronologiqiiesdu Nonvean Monde, p. 13. . t L'Escaiiot, p. 21. t Salmon, III. 536. ! well tweeii I, the i same ithoiit resent know- ded it, sies. session gating ain of mding itil we ought ful aid ?judice ain be can antage th the for in ing no easily iencan chart |e was irst of jew of lot the landed more cattle I It is not necessary here to advert to the voyages of Jean Vcrrazan to the southern parts of North Anjcrica, in the years 1523, 1524, and 1525, nor to those in the same direction of Laudonierc, Riband, and of the Chevalier de Gourgues. Nor is it necessary for us to take any notice of the voyage of Jaques Cartier, in J 534, and of his settlement upon the north shore in 1335 ; nor of the first appointment of a Lieutenant General in the countries of " Canada, Hochelaga and iSaguenay, and others in 1540." Our attention will be confined to the River and Gulf of Saint Lawrence, and to the great Peninsula commencing on the southern sljore of the Saint Lawrence, opposite Quebec, and terminating at the mouth of the River St. Croix, in the Bay of Fundy. After the failure of an attempt to make a settlement at Tadoussac, by the Sieur Chauvin, a French Protestant, and after his death, about the year 1602, the Sieur de Monts, who had made his first voyage with Chauvin, formed the project of effecting a settlement more to the southward.* The Sieur de Poitrincourt joined in this enterprise. L'Escarbot, whom the Sieur de Poitrincourt took with him to America on his second voyage, in 1606, has given the history of these early settlements, whereof he was, as it were, an eye witness, since Port Royal (Annapolis) was only founded in 1605, and that he was mainly accessary to the earliest advances of that Colony. The letters patent nominating the Sieur de Monts Lieu- tenant Geniral pour representer notre personne au Pays, Territoi?'e, Cotes et Confins de V /icadie, a commencer des le guarante-puatriime degrSjusqu an quarantc'sixieme bear date the 8th November, 1603, and may be read in L'Escarbot, p. 417. As early as 1604, the Sieur de Monts fitted out two ships, one intended to form a settlement within the limits of his grant, in which he embarked with the Sieurs Champlain * RIemoiiesdes Cominissaires du Roi, etdeceuxdeSa Majesty Britan- nique sur les possessions et les droits respectifs des deux Couronnes en Ani^- rique, I. 137— Champlain, part I. p. 42. I and de Poitriiicourt, the other under the command of the Sieur de Pont Gruv^, intended principally for the fur trade.* Upon the 6th May, 1604, they reached the coast of Acadie at Port Rossignol, and thence sailini? coastwise, they reached a port which they called Port au Mouton. They thence went to Cape Sable and explored a large Bay, which they denominated la Bale Franyoise, and which is now known by the name of the Bay of Fundy. The Port at the entrance of this Bay was from its signal beauty, called Port Royal and the Sieur de Poitrincourt was so well pleased with the situation that he solicited and obtained a grant of land, there to settle with his family.t After going out of Port Royal and exploring the Mines, thoy crossed the Bay and arrived at the River St. John on the 24th of June; leaving then that river, and sailing coastwise, they came to the mouth of a river and settled on a small Island, in it which they called St. Croix, a name which was after- wards transferred to the river itself.J The situation of St. Croix not being found advantageous, it was determined to effect a new settlement at Port Royal, and this was carried into effect in 1605. || Another settlement was effected about the same time to- wards the River Peiitagoet (Penobscot) by the Sieur de la Sau8saye.il The Colony not receiving much sup|)ort from France, was feeble and unprosperous, but retained quiet possession of the country. Against this Colony, in a time of profound peace^ the expedition of Argal was directed. He found it totally unprepared for defence. The Inha- bitants who had assiduously and successfully cultivated the friendship of the Indians, being restrained by no fear of hostility from them, were scattered abroad in the woods, engaged in ilieir several pursuits, and a Ship and Bark just * Mem. des Comm. I. 137. t L'Escarbot, p. 440. || L'Escarbot, 405, 496, Mem. Coins. 188. i L'Escarbot, pp. 441et8eq. f Cbamplain, pt. I. p. 104an(lseq. ince. Inha- rated lar of >oci&, Ijust 1S8. leq. arrived from France, ladpii with articles necessary for the use of the Colony were surprised in port, and their cargoes taken to u rimes Town. Argal left no garrison to keep pos- session of the place, and after his departure, the French who had only dispersed themselves among the Indians dur- ing the continuance of danger, inunediately resumed their former station. The pretext for this predatory expedition was, that the French by settling in Acadie had invaded the rights of the English acquired by the first discovery of the continent.* The voyages of discovery, made by the English and French to the Coast of North America, had been nearly contemporaneous, and they set up conflicting claims to the territory, in 1603, Henry W. of France ( as has already been seen ) granted to Do Monts a commission as Lieutenant General over that pai t of America, which lies between the 40th and 4Gth degrees of north lati- tude, with powers to colonize and to rule it, and in 1606, King James granted to the two Virginia Companies all that territory which lie» between the 84th and 45th degrees of north latitude, in consequence of which, in 1614, Captain Argal attacked and dispersed the settlements made hy the French on the Bay of Fundy. In 1620, James granted to the Plymouth Company all that territory which lies between the 40th and 48th degrees of north latitude, ano' in 1621, he, as King of Scotland, granted to Sir William Alexander, under the title of Nova Scoiia, with the consent of the Ply- mouth Company, the country bounded on the North and East and South by the River Saint Lawrence and the Ocean, and on the West'by the River St. Croix. Under these dif- ferent grants, actual settlements had been made by the French as far South and West as the St. Croix, and by the English as far North and East as the Kennebec or Connec- ticut lliver. During the war with France, which broke out in the commencement of the reign of Charles the First, that Monarch granted a commission to Captain Kirk for the conquest of the countries in America, occupied by the French, and under that commission, in 1629, Canada and Acadie were subdued ; but by the treaty concluded at St. • Chalmcrs,~Hutchinson,— Masrhall's Life of Washington, vol. I. p. 54, 55. 8 Ciorinaiii, tliosi' places wvvv restored to Fiance, witiiout any (lesciintion of their limits, und Port Royal, Quebec and Caj)e Breton were s(;verally surrendered by nanic.^ The Treaty of St. Germain contained not a cession but a restitution as will be seen on reference to the terms of it. The circumstances accompanying (he negotiation of this Treaty so far as Canada and Acadie are concerned, are to be found as well in Charlevoix, vol. 1, page 173 and seq. as ill the begining of the second book of the Historia Cana- densis Creuxii. The letters Patent to William Alexander, Karl of Stirling, were anterior to the Treaty of St. Germain, his first Patent by James the First, being of the year 1621, and his second by Charles the First, bearing date in J625, whilst the treaty of St. Germain is of 1633. The descrip- tion of Nova Scotia as given in these Letters Patent, is in the following words : — ii Omnes et singulas terms continentes et insulas situatas et jacentes in America^ intra Caput seu promontorium " Commiiniter Cap de Sable appellatuniy jacens prope " latitudinem quadraginta trium gradtawi aut eo " circa ah equiuoctiali lined versus Septentrionem a quo " promontorio versus littits maris tendens ad Occidentem ad " Stationem navium Sanctce Marice vulgo Saint Mary^s Bay, et deinceps versus Septentrionem per directam line - am, introitum sive ostium magnce illius stationis navium trqjicientem quoe excurrit in tertce Orientalem plagam '^ inter regiones Suriquorum et Hecheminorum vulgo Sevri- quois et Etchemins adjiuvium vulgo nomine Sanctce Cru- cis appellatum, et ad scarturiginem remotissiman sive fontem ex occidentali parte ejusdem, qui se primum prcedicto jiuvio immiscet ; unde per imaginariam direc' tarn lineam qute pergere per terram seu currere versus Sejitentrionem concipietur ad proximam navium statio- " nemfluvium vel scaturiginem in magno Jiuvio de Canada sese exonerantem et ab eo pergendo versus Orientem pet maris oras littor ales ejusdem Jluvii de Canada, ad fiuvi- um^ stationem navium, portum aut littus communiter nomine de Gachepe aut Gaspe notum et appellatum ; et deinceps versus Euronotum ad Insulas Baccalaos vel i( (C Ci (S iS (C IC (( tc (( it (t Chalmers,- Hutchinson,— Marshall's Life of Washington, vol. 1. p. 103.4. 9 eo vel 103-4. " Cape liretoH vocdftiSj refifKjuendo eusdem insulas (I dextrn ** et voraginem dkti Jiuvii de Canada sirr mu^na^ stationiit " naviuni et terras de Newfoundland cum insulis ad ensdem " terras pertinentihus a sinistra et dvinceps ad Caput sivc " proniontorium de Cap Breton prwdictum Jarens propc " latitudineni (juudraginta quinrpie graduum ant eo circUf ** et eL dicto promontorio de Cap Breton versus meridiem et " occidentem ad prasdictum Cap de Sable nbi incepit peram- ** bulatiOf includens et comprehendens intra prwdictas maris eras littorales ac earum circumferentias h mart ad mar By omnes terras continentes rmnjluminibusj torrentibus, si- nibus, littoribus insulis, aut maribus /acentibusprope aut infra sex leucas ad alitjuam earumdem partem, ex Occi- " dentuli, boreali vel Orientali partibus orarum littora^ Hum et prcecinctuum earumdem, et ab FAironoto nbi Jn- ret Cap Breton, et e.r Australi parte ejusdem (nbi est Cap de Sable) omnia Maria ac insulas versus meridiem intra quadraginta leucas dictarum orarum littoralium earum- dem, magnam insulam vulgariter appellatam Isle de *' Sable vel Sablon includendo, jarentem versus Carban " vulgo South South'East, circa triginta leucas a dicto Cap Breton in mart et cxistentem in latitudine quadra- ginta quatuor graduum aut eo circa.''* In the Treaty of St. Germain there was a formal surrender of all claim to the land described in the Earl of Stirling's Patent, and it was to have been expected, that nothing more would have been heard of that claim. tt (t t< €( (( (f <( (t tt « te However, " Colonial Historians (says Chalmers * ) with an inattention or interestedness of which there are few examples, have always insisted that, notwithstanding the absolute restitution before mentioned, certain rights with regard to ihat territory still remained in England ; and her statesmen with a credulity and want of wisdom equally unexampled, have implicitly adopted their senti- *' ments.t But in what consists the justice or policy of *^ preserving latent pretensions which cannot be defended by *' candid discussion ? The law of nations reprobates what- " soever contributes to disturb their repose ; and the present • Chalmer's Political Annals of the Colonies, p. 93. t This appears to liave been written before the American Revolution. B I II- H. 1 10 '< generation has abundant cause to deplore that system of " mistaken politics which entailed on this Realm contentions " and debte, that posterity may possibly regret in vain." No sooner was Acadie restored to France in 1632, than her Sovereign granted to De Razilly, the lands around the Bay and River of St. Croix. The Company of New France conveyed, in 16.35, the territory on the Banks of the River St. John to St. Etienne De La Tour, the General of that Colony. Massachusetts as well as the other settlements of New England beheld with regret the progress of the French on the adjacent coast, and dreaded their ultimate success ; and Sedgewick who was Commander in Chief of Cromwell's for- ces in New England, was easily persuaded to attack a people, whose religious tenets he detested, and whose country he hated. He acquired Port Royal by Capitulation, in August 1654 ; giving to the Inhabitants liberty in their religion, and security for their property, and on these conditions Acadie soon after submitted to his power.* After the conquest of the Peninsula of Nova Scotia by the arms of Cromwell he issued his Letters Patent granting to the Sieurs Charles de St. Etienne, Crowne and Temple the country and territory called Acadie by the following description, ( as given in the French translation of it contained in the '^ Memoi' ** res des Commissaires du Roi, et de ceiix de Sa Mqjest4 Bri" '* tannique sur les possessions et les droits respectifs des deux " Couronnes en Ainerique" cited above.) " Le payset terri- *^ toire appelle I'Acadieet partiedu paysnomme la Nouvelle- " Ecosse depuis Merliguesche du cote de I'Est jusqu'au Port etCap de la Heve rangeant les cOles de la mer jusqu'au Cap de Sable, et dela jusqu'a un certain Port appelle le Port la Tour, et a present nomme le Port VEsmeron, et dela rangeant les cotes et Isles jusqu'au Cap et Riviere Sainte Marie, rangeant les cotes de la Mer jusqu'au Port Royal, etdela rangeant les cotes jusqu'au fond de la Baie, et dela rangeant la diie Baie jusqu'au Fort St. Jean, et '* de la rengeant toute la cote jusqu'a Pentagoet et Riviere *^ St. George dans Mescourus, situe sur les confins de la t< * Chalmer's political Annals of the Colonies, pages 1S6>7. life of Washington. Marshall's I \ t c .1 and 072) el iiviere a Port Baie, tan, et irshall's I 11 " Nouvelle-Ano-leterre du c6te de TOuest et en dedans les « terres tout le long des dites cdtes jusqu*a cent lieues de ^' profondeur, et plu3 avant, jusqu'a la premiere habitation '^ faite par les Flamans ou Fran9ois, ou par les Anglois de la " Nouvelle-Angleterre." In the month of November 1655 a treatywas made between the two nations. France demanded the restitution of the country which had been taken from her. The English Go- vernment set up claims to this country. The decision of this controversy was by the 25th Article of the treaty of West- minster referred to Commissioners, but the question was only ultimately settled by the treaty of Breda. The restitution of Acadie and the other possessions of France in America, which had been conquered by the English, was stipulated for by that treaty made in 1667, and carried into effect in 1670. The article of the treaty of Breda relating to the restitution of Acadie is in the following words : — "Le ci-devant nomme " Seigneur le Roi de la Grande-Bretagne restituera aussi et " rendraaii ci-dessusnomm6 Seigneur le Roi Tres-Chretien, ** ou a ceux qui auront charge et mandement de sa part, icelle ** en bonne forme du Grand Sceau de France, le pays ap- " P'elle r Acadie, situe dans TAmerique Sepientrionale, dont *' le Roi Tres-Chretien a autrefois joui, etpour ex^cuter " cette restitution, le sus-nomme Roi de la Grande-Breta- gne incontinent apres la ratification dela presente alliance, fourniraau sus-nomme Roi Tres-Chretien, tous les Actes et Mandemens expedies duement et en bonne forme, ne- cessaires a cet effect, ou les fera fournir a ceux de ses Mi- nistres et Officiers qui seront par lui deldgues.'* The Act of restitution of Acadie by the Crown of England bears date the 17lh of February, 1667 — 8, and will be found in the Appendix to this paper under the letter A. Here then is a second restitution not cession of Acadie which formed a portion of the territory comprised in the Let- ters Patent of James the First, an.l Charles the First in favor of Sir William Alexander. In 1674 the Fort of Pentagoet was attacked by an English- man with the crew of a Flemish shhp, and taken possession 12 I of, as well as that of Fort St. John. In 1680 some men from Massachusetts seized upon the same Forts which they abandoned, and the Baron of St. Castin who had repaired thatof Pentagoet was summoned by the Governor of New- England to evacuate it. These acts of aggression were made the subject of loud complaints on the part of the French Colonists, and the Bri- tish Colonists on their part complained of similar acts of aggression within their territories by the French Colonists. — The war commenced anew between the two nations in 1 689, and in the month of October, 1690; the English took Port Royal and Chedabucto and summoned Quebec in the month of October in the same year, 1690. The peace which was re-established in 1697, restored tranquillity to America leav- ing the belligerents in possession of the territories they had there before the war. This treaty known by the name of the treaty of Ryswick, like the two preceding treaties of St. Ger- mains and Breda, contains a restitution to France of her North American possessions generally, and under it the great Peninsula of the River and Gulf of Saint Lawrence was res- tored to that power. This peace, however, was but of short duration, and the war again commenced between the two nations in 1702. The* treaty of Utrecht put an end to this war in 1713. By the twelfth Article of this treaty His Most Christian Majesty ceded and transferred to the Queen of Great Britain, Novam Scotiam quoque sive Jlcadiam totam limitibus suis antiquis comprehensam ut et Partus Regis urbem, nunc Annapolim regiam diet am ceteraque omnia in istis regionibus, quce ab iisdem terris et insulis pendent, Sfc. It is not necessary at present to enter into the details of the controversies which arose between the two States upon the construction of this article of the treaty. The original limits of Acadie, as established by the letters patent to the SieurDe Monts, as Lieut. General of that Coun- try and the adjoining countries, bearing date the 8th Novr. 1603, embrace the country between the 40th and 46th degrees of latitude. The grant of the company of New- France to Charles De St. Eticnne, SieurDe La Tour, Lieu- u oi E n; 13 i '. men I they )aii'e(l New- ■ loud \e Bri- cts of sts. — 1689, i Port month ;h was I leav- !y had of the t. Ger- of her e great IS res- nd the ^. The* By the lajesly Vovam ntiquis 'ipolim mce ab of the on the letters Coun- Novr. 46th New- Lieu- tenant General of Acadie, of the Fort of La Tour, on the River St. John, bears date the II th February, 1638, and contains a grant of Le Fort et habitation de la Tour situi en la Riviere St. Jean en la Nouvelle France entre les guarante-cinq et quarante-six digres de latitude, ensemble les terres prochainement adjacentes it icelui dans I'entendue de cinq lieues audessus, le long de la dite riviere, sur dix lieues de profondeur dans les terres, <5fc, Sfc, tenir le tout en Jief mouvant et relevant de Quebec, 6$c, Difficulties having previously existed between M. De St. Etienne and M. leCommandeur De Razilly, Lieut.Generalof New France, who had settled upon, or near, the Bay of Fundy, and held a grant of the River and Bay of St. Croix, of twelve leagues in breadth and twenty leagues in depth, His Most Christian Majesty Louis XIII. by a letter dated the loth February, 1638, and addressed to Mr. De Razilly, de- termines the limits of Mr. De Razilly's government and those of Acadie, which letter was addressed to Mr. De St. Etienne in the following words : — " Monsieur D'Aulnay Charnisay *' — Voulant qu'il y ait bonne intelligence entre vous et le Sieur de la Tour sans que les limites des lieux ou vous avez a commander I'un et Tautre puissent donner sujet de controverse entre vous; j'ai juge a propos de vous faire entendre mon intention, touchant I'etendue des dits lieux, qui est que sous I'autorite que j'ai donne a mon cousin le Cardinal, Due de Kichelieu sur toutes les terres nouvellement decouvertes par le moyen de la navigation, dont il est Su»'intendant, vous soyez mon Lieutenant General en la Cote des Etchemins, a prendre depuis le milieu de la terreferme de la JSaie Francoise, en tirant vers les Virginies, et Gouverneur de Pentagoet et que la charge du Sieur mon Lieutenant G4n4ral en la Cote d' Acadie soil depuis le milieu de la dite Baie Fran- qoise jusqu'au detroit de Canseau, 8^"., Sfc* The Sieur De La Tour was, on an accusation of keeping up communications with foreign Protestants, arrested by order of the Court of France and sent home, and the Sieur De Charnisay succeeded in getting annexed to his govern- ment in 1647, under the name of ** I'Acadie & confins," * Menif des Codidi. et Pieces justificatives. (S f( (f tc (C (C Cf ■ \i- y 25 " que les Commissaires du Roi se sont proposd d*apporter " an r^glement des limites^ puis que ce qu'ils auroient pu " marquer h. cet ^gard, auroit ^t^ arbitraires, n'y ayant " jamais eu dans le fait aucuues liinites etablies dans cette " partie^ et c'est Ik pr^cisement Tobjet de ce quiestk re« " gler entre les Commissaires respectifs. " Dans de pareils cas, la r^gle la plus usit^e et la plus '^ convenable, est d'^tendre les limites dans Tinterieui* des " terres, jusqu'a la source des rivieres qui sedechargent k '* la cote, c'est-a-dire ; que chaque nation a de son c6t6 " les eaux pendantes ; c'est ainsi qu'on en a use a la paix " des Pyrenees, pour fixer les limites entre la France et '* TEspagne ; et si les Commissaires du Roi connoissoient '* une r^gle plus equitable, ils la proposeroient aux Com- ** missaires de Sa Majeste Britannique/' The article of the treaty of 1783 which relates to this line of boundary U the 2nd article, and it provides as follows : '* That all disputes which might arise in future on the subject of the boundaries of the United States maybe prevented ; it is agreed and declared, that the following are and shall be their boundaries, viz : from the north- *' west angle of Nova Scotia, viz : that angle which is form- ed by a line drawn due north from the source of the St. Croix River to the highlands, along the said highlands " which divide those rivers, that empty themselves into *^ the River Saint Lawrence from those which fall into the '' Atlantic Ocean to the north-westernmost head of Connec- *' ticut River, thence down along the middle of that river, ^' to the 45th degree of north latitude, from thence by a line ^* due west on said latitude, until it strikes the River Iro- puois or Cataraquy." The southern boundary is terminated " by a line down along the middle of St. Mary's River to the Atlantic " Ocean." The boundary is continued " east by a line to '* be drawn along the middle of the River St Croix from its " mouth in the Bay of Fundy to its source, and from its source " directly north to the aforesaid highlands which divide *• the rivers that fall into the Atlantic Ocean from those '^ which fall into the River Saint Lawrence, eomjjfvehefkd' (C (C te te (6 %-, if (ki 26 *( 1 ii Hi '; I!, 1 1 li ing all islands within twenty leagues of any part of the '* shores of the United States, and lying between lines to be drawn due east from the points where the aforesaid boundaries between Nova Scotia on the one part, and *' East Florida on the other, shall respectively touch the " Bay of Fundy, and the Atlantic Ocean, excepting such ^* islands as now are, or heretofore have been within the " limits of the said Province of Nova Scotia." The next public document to be looked at is the treaty between Great Britain and the United States of America, made on the 19th of November, 1794. The fifth article of that treaty is to the following effect : — " Whereas, doubts have arisen, what river was truly intended under the name of the River St. Croix, mentioned in the said treaty of peace, and forming a part of the boundary therein described, that question shall be referred to the final decision of commissioners to be appointed in the following manner, viz. : — ec te {( if ce t< if ft f< ft ft ft ft " One commissioner shall be named by His Majesty, and one by the President of the United States, by and with the advice and consent of the Senate thereof, and the said two commissioners shall agree on the choice of a third ; or if they cannot so agree, they shall each propose one person, and of the tw^o names so proposed, one shall be drawn by lot in the presence of the two original commissioners; and the three commissioners so appointed, shall be sworn, impartially to examine and " decide the said question according to such evidence as " shall respectively be laid before them, on the part of the " British Government and of the United States. The said " commissioners shall meet at Halifax, and shall have power " to adjourn to such other place or placesasthey shall think " fit. They shall have power to appoint a secretary, and '^ to employ such surveyors or other persons as they shall " judge necessary. The said commissioners shall, by a " declaration under their hands and seals, decide what " river is the River St. Croix, intended by the treaty. — '* The said declaration shall contain a description of the '* said river, and shall particularize the latitude and <* longitude of its mouth and of its source. Duplicates of )()wer think , and shall by a what ity.-- )f the and ites of 27 " this declaration, and of the statements of their accounts, •* and the journals of their proceedings, shall be delivered ** by them to the agent of His Majesty, and to the agent " of the United States, who may be respectively appointed " and authorized to manage the business on behalf of the *' respective governments ; and both parties agree to con- " sider such decision as final and conclusive, so as that " the same shall never thereafter be called into question, " or made the subject of dispute or difference between " them/' Soon after the making of this treaty, Thomas Bar- clay, Esquire, on the part of His Majesty, and David Howell, Esquire, on the part of the United States, were named commissioners to carry the above clause into effect. In 1796 Egbert Benson, Esquire, a Judge of the Supreme Court of the State of New York, was appointed as an umpire by the mutual agreement of both commis- sioners to settle a question which it seems had arisen whether the Iliver St. Croix, mentioned in the foregoing treaties, was the river now known by the name of the Magaguada- vie as was contended on the part of the United States, or the river now known by the name of the River Schoodic as was urged on our part. The umpire determined, that the River Schoodic was the true St. Croix. A new difficulty arose, after ascending the St. Croix for about five and twenty miles ; at that distance two streams are met with, the one from the westward, taking its source in the Crooked Lake and running through a succession of large lakes, commonly called the Schoodic Lakes ; the other taking its source in a lake called Grand Lake, and empty- ing itself at the same point, as the waters proceeding from the Schoodic Lakes at a distance as was mentioned before of about 25 miles from the mouth of the St. Croix. The American commissioner contended, that the latter branch of the St. Croix was that branch at whose head waters the point of departure was to be taken, whilst on the other hand the commissioner named by Great Britain, urged, that the point of departure could not be any other than the highest waters of the westernmost source of the St. Croix. It is somewhat surprisingf^ that such a claim should have I 1 I'' 2S If i.i n been at all set up by the American commissioner. The St. Croix being the westernmost boundary of Nova Scotia, it's westernmost waters were alone to be looked at. Again, in the original letters patent to Sir William Alexander, the western branch of the St. Croix is expressly named as the boundary of the Province of Nova Scotia. The words in this patent it will be recollected are " ad fluvium vulgo no- " mine Santae Crucis appellatum, et ad scaturiginem re- " motissimam sive fontem ex Occidentali parte, ejusdem *• qui se primum praedicto fluvio immiscet." Other reasons might be added, but it is sufficient to say, that at the expi- ration of two years from the time when the difficulty was first started, ( A. P. 1798, ) a decision was made by the umpire^ rejecting, as might have been expected, the Ame- rican pretensions upon this score. For this we have the authority of a writer who has published a pamphlet on this subject under the signature of Verax, who evidently had access to the original documents of the commission, and could not have been mistaken upon a point of such vital importance. His words in his first letter are as follows : " The next year after this treaty was concluded, viz. in " the year 1784, a part of the ancient Province of Nova " Scotia, bordering on the United States, was erected into " the Province of New Brunswick, and settlements were *' made by the King's subjects, at St. Andrews, and on the River Schoodic, as being the St. Croix, and the boun- dary of the treaty. The Americans soon set up a claim to the River Magaguadavic, as the St. Croix ; and the treaty of amity, commerce, and navigation, made in the year 17^4, commonly called in the United States, Jay's treaty, provided for settling this question by a board of three commissioners. By the provisions of this treaty, one commissioner was to be appointed by each govern- ment, and the two commissioners so appointed, were to agree in the choice of a third ; or if they could not agree, each was to propose one person, and of the two names so proposed, one was to be drawn by lot, in the presence of the two original commissioners. In this instance, the two Qi%i^T cofnj9xssM)i»£rs did Bgve^ m ih^ choice of a it €t te « u « (e (( 29 le St. I, it's in, in , the as the [•(Is in ;o MO- ni re- isdein ;asons expi- y was by the Ame- 10 has ture of lentsof upon a t letter VIZ. in Nova (1 into ,s were on the boiin- claim d the in the Jay's ard of treaty, overn- ere to agree, mes so nee of e, the e of a 7 *' third. A Judge of the Supreme Court of the State of New York, and a man whose character stood high for talent and integrity ; it being probably thought more adviseable by the Britisli commissioner, to select, by mu- " tual choice, an individual whose character was known to " him although a citizen of the United States, than to trust to *' the nomination of a third commissioner, and thus, in all " probability, the decision of the controversy entirely to " chance.— This was in the year 1796. The discussions ** before three commissioners were continued until the " Autumn of J798 ; the Magaguadavic being throughout, " most strenuously insisted upon as the true Hiver St. " Croix, on the part of the United States. The result in ^' the first instance was, at the time, well understood to be, " that the third commissioner, who was, in fact, the ** umpire, expressed himself satisfied that the British claim " was fullif established to the River Schoodic, as the River ^' St, Croix, truly intended hy that name in the treaty of " 1783, and to the western branch op that river, as <« THE TRUNK AND MAIN RIVER ; the Original commissioner ** expressing himself to be of a different opinion." It would seem, that after so giving his opinion, the commissioners and umpire were all fundi officio, and that it remained only to place the boundary stone, indicat- ing the point of departure at the head waters of the western- most source of the Schoodic Iliver. This was not done. It is certain, that the boundary mark of the point of departure was fixed at the highest waters of the northernmost source of the Schoodic River. It is from this fata) source, that all the difficulties, which for the last 35 years have embarrass- ed the settlement of this most important question have risen. It is this, and not any ambiguity in the treaty of 1783 which has protracted for so many years and still keeps nnsettlef the was Ibio to <( i< t< (C (( « (( (( t( <( a {< (C t( 31 suppose may be substantiated by documents in the hands of those officially connected with the transaction, because the writers in the State of Maine, in a spirit by no means liberal or magnanimous, speak of it, as one in which an advantage was obtained over the United States, and made a merit of the State of Maine and Massachusetts having quietly submitted to it ; whereas, if national controversies are to be weighed in the same narrow scale as the disputes of obstinate litigants, in a municipal court, the advantage may be fairly said to lie on the part of the United States, for it appears to me that the course pursued by the comvDnssione rs urulev the treaty of 1794, with regard to the source of the St. Croix, is clearly erroneous, upon the principle which established the river itself to be the true St. Croix. " That principle is shortly this ; the River St. Croix, intended in the treaty of 1783, is a river, a due north " line from the source of which, forms one side of the " north-west angle of Nova Scotia, and therefore was a part of the western boundary of that province. The river which was a part of the western boundary of Nova Scotia, is the river intended by the name of the St. Croix, in the original erection of that province, by the grant of " King James I. to Sir William Alexander, in the year " 1621, and in that grant described thus: 'The river *' commonly called by the name of St. Croix, and to the " most remote spring or fountain from the western part of ^* the same, which first mingles itself with the aforesaid (( « « f about ten miles, at which point it spreads out into a lung irregularly formed expanse of water, which from its resemblance to a lake, is popularly, but improperly denominated Grand Lake, of twelve or fifteen miles in length. It thence proceeds a distance of seven or eight miles with its usual river breadth, and there again expands into two or three smaller and irregular sheets of water, which might, in like manner, be improperly called lakes, the lowest of which is not, as stated by Verax, at the distance of six miles above the confluence of the Cheput- naticook, or eastern branch of the Schoodic, but is at a distance of from twenty-five to thirty miles from the point of confluence. Another highly material error of fact to be found in this statement, is, " that if the most western source of the " Schoodic had hepn derided to be the source of the St. " Croix, under the treaty, it would have carried the line '"' running due north from that points only about ten miles " further to the westward," Now so far from this being the case, the interval between the meridians of longitude of these two points is twenty statute miles. — ^The interval between the two points, in a straight line, is fifty statute miles. This mislocation of the point of departure was altogether unknown in this province, until soon after the publication of the before- mentioned pamphlets. It is not now many years since rumours first began to be whispered, implying that the American line intersected the route from Halifax to Quebec* The belief that such might be the case, acquired such a degree of consistency, that upon the close of the last * h. t 36 M, American war, the following article was inserted in the treaty of peace between Great Britain and the United States of America, at (ihent. " Whereas, neither that point of the highlands lying due north iVoni the source of the River St. Croix, and designated in the former treaty of peace between the two powers, as the north-ivest atiele of Nova Scotia^ nor the north'tvestvrnmost head of Connevticut Hiver, has yet been ascertained; and whereas that part of the boundary line between the dominions of the two powers, which extends from the source of the iiiver St. Croix, directly north to the above-mentioned north-west angle of Nova Scotia, thence along the said highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the north-westernmost head of Connecticut River, thence down along the middle of that river to the forty-fifth degree of north latitude, thence by a line due west on said latitude, until it strikes the Iiiver IroquoiSy or Caiaraqwj, has not yet been surveyed,^ »> The article goes on to provide for the appointment of commissioners, and that " they shall have power to ascer- tain and determine the points above-mentioned, in conformity with the provisions of the said treaty of peace, of\7S3; and shall cause the boundary aforesaid, from tiie source of the River St. Croix to the Iroquois, or Cataraquy, to be surveyed, and marked according to the said provisions.' <( a (( (( ), The article further directs that " the commissioners " shall make a map of the boundary, particularly the *^ latitude and kmgitude of the north-west angle or Nova " Scotia, the north-ivesternmost head of Connecticut River, " and such other points as they may deem proper.'* The motives assigned by Verax, for the procedure of the commissioners and umpire, in thus substituting, for the true point of departure, one which, from his statement, it appears that all parties knew to be otherwise, seem to be entirely inadequate. I t, It to be 37 ;rc is reason to believe tliat subsequent to tlie treaty of 17h3, to wit, about tiic year 1787, settlements were ina(i( under the authority ot the State of Mas^iachusetts within the Britisli lines. The circumstanees atteniling this settlement, are not sufliciently well known, to enable one to jiKlge whether it was made in good faith or not. But supposing the utmost good faith to have obtained with the settlers, the greatest extent to which their claim, J wiM not say upon the justice, but upon the magnanimity ol His Majesty's government could have been carriecl, would have been for a conHrmation of their titles to the lands in their actual possession, upon their taking the oath of allegiance, and becoming the King's subjects ; or if this last condition was not agreeable to them, then to have been allowed to sell the lands in their actual possession, and to remove from the country with their effects, having a reason- able time allowed them for effecting the sale of their lands. But it is clear that it should have been given as a boon, and should have been strictly confined to the lands in the actual possession of settlers under grants from the State of Massachusetts. Unanimity was in itself a thing highly desirable ; but the price which seems here to have been paid for it, — the surrender of a small province, without any other equivalent, may, perhaps, be thought too high. Verax, it is apprehended, is also in an error, in con- sidering the erroneous location of the point cf departure, in 1798, as conclusive and irremediable. The power conferred upon the commissioners of the two countries, under the treaty of 179*, was a limited power — limited as to the subject of it, and limited as to the form and manner in which it was to be executed. The matter referred to the commissioners was, to deter- mine, " what river was truly intended under the name " of the River St. Croix, mentioned in the said treaty of '« J 783, and forming a part of the boundary therein " described."—- Art. 5. 38 1 (( If the commissioners named should not agree^ then the treaty provides that " the two commissioners shall agree on the choice of a third, or if they cannot so agree, they '^ shall each propose one person, and of the two names so *' proposed) one shall be drawn by lot, in the presence of '^ the two original commissioners/' It has been seen above that another, and very difTerent mode of selection was adopted by the commissioners, and the important point, that the umpire should be an American citizen, surrendered. The umpire and the commissioners were next to be sworn, " to examine and decide the said question, accord- *' ing to such evidence as should respectively be laid *' before them, on the part of the British government, and " of the United States/' They were then, by a " declaration under their hands '* and seals,*' to " decide what river is the River St. Croix, " intended by the treaty ; " and this declaration was "to *' contain a description of the said river." and was to " particularize the latitude and longitude of its mouth, and '' of its source." " Duplicates of this declaration, and of the statements of ** their accounts, and of the journals of their proceedings," were to be delivered by them, "to ihe agent of His Majesty, " and to the agent of the United States, who may be *' respectively appointed and authorized to manage' the '^ business on behalf of the respective governments; " and then, and then only, both parties agreed " to consider '* such decision as final and conclusive, so as that the same " shall never thereafter be called into question, or made ** the subject of dispute or difference between them.* It appears from the foregoing, that the power'of the commissioners was confined to the determining of the question of what river was the River St. Croix, intended by the treaty of 1783. That point determined, they were instructed to cause it to be surveyed, What should be considered its source was not referred to them ; and their finding, therefore upon this question would, even if regular, have been a mere and absolute nullity, 39 len the II agree e, they imes so jnce of ifferent rs, and lericaii ; to be iccord- je laid it, and hands Croix, LS « to kvas to h, and ;nts of ings," ijesty, lay be :e' the ' and nsider I same made But there were irregularities in the proceedings (as stated by Verax) which, if the treaty had gfven^ hem Sdetr'Sr: '»'^«ssession de la ditte terre ; et conservera le dit sieur de Marson, et fera conserver par ses tenanciers, les hois de ch^ne qui se trouveront propres pour la construction des vaisi^caux, dans I'etendue des dits lieux ; et qu'il donnera incessamnient avis au Roi et a nous, des mines, minieres ct mint'raux, si ancuns se trouvent, et y laissera et fera *' laisscr tons chemins et passages necessaires : le tout sous le bon plaisir de Sa Majeste, de laquelle il sera tcnu de jireiidre la confirmation des prcsentes dans v.n an. En tc'moins de quo! nous avons signi ces prt^sentes, a icelles fait ajjposer le seeau de nos amies, et contiesigner par " Tmi (le no< Secrc'faire. Don^k' a Quebec, le douzienie ii ii a il ii ii a ti ii ii ii \ AFPENIDX. 53 ** Octobre, mil six cent soixante-seize ; aimi sign6 a Vori- " ginal, Frontenac, scelle a c6te du sceau des amies du (( ii (lit Seigneur, et cnntre-signe plus has, par Moiiseigneur. Lk Chasseur, avec paraphe. Et ensuite est tcrit. " Le litre de concession ei-dessus, a ele confirme par arr^t du Conseil d'Etat du Koi, du 29 Mai 1680, et re- gistieau grett'e du Conseil souverain a Quebec, suivant ** le (lit arret du Conseil d'Etat, et celui du dit Conseil souverain, du 24 Octobre au dit an, parmoi, Greffier en chef audit Conseil, soussign^, Aitisi siguS Peuvret, avec paraphe". (( n C( Louis de Buade, ConUe de Frontenac, Conseiller du Roi en ses Conseils, Gouverneur et Lieutenant-general pour Sa Majeste en Canada, Acadie, Islede Terre-neuve et autres pays de la France septentrionale ; A tous ceux qui ces presentes lettres verront ; Salut. Savoir faisons que sur la requ(^te a nous presentee par Pierre de Joibert Ecuyer, sieur de Soulange et de Marson, Major de Pen- tagoet, et Commandant des forts de Gemisik et de la riviere de Saint Jean, contenant que depuis quatre annees qu'il a I'honneurde commander sous nos ordres dans les dits forts, il a fait diverses reparations et augmentations a celui de Gemisik, afin de le rendre logeable et de de- fense, n'y ayant auparavant qu'un petit logement de bois tout ruine, entoure seulement de quelques palissades a demi-tombees par terre ; en sorte que pour re-edifier le tout, il lui auroit coute beaucoup, et se verroit encore contraint d'y faire de grandes depenses pour le remettre en etat, a cause de la ruine entiere qu'en out fait les Hollandoit en le falsant prisonnier dans le dit fort, il y a deux ans, et lui enlevant generalement tout ce qu'il y " avoit ; ce qui ne seioit pas juste, s'il n'etoit assiire d'ob- " tenir I'efFet des promesses de M. Talon, ci-devant Inten- " dantde la justice, police et finance de ce pays, lequel ^' lui en avoit fait esperer la propridte ; c'est pourquoi il requeroit qu'il nous plut lui accorder pour son rembour- sement la propriete du fort ou maison de Gemisik, avec une lieue de chacpie cote du dit, fort, faisant deux lieues de front, la devanture de la riviere, et les isles et islets qui y sont, etdeux lieues de profondeur dans les terres, avec le droit de chassc ct do peche dans retenduc des a