A Compilation of the Messages and Papers of the Presidents. Volume 4, part 2: John Tyler

by Unknown

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,[45] 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.[46] 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[47] 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.[48] 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.[49]

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,[50] 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.