John Tyler

1998

which may be conceived to stretch through the land or to run toward the north, to the nearest road, river, or spring emptying itself into the great river de Canada (river St. Lawrence); and from thence, proceeding eastwardly along the seashores of the said river de Canada, to the river, road, port, or shore commonly known and called by the name of Gathepe or Gaspe."

[Translation of Mr. Bradley, the American agent under the fifth article of the treaty of Ghent.]

"By the tenor of this our present charter we do give, grant, and convey to the said Sir William Alexander, his heirs or assigns, all and singular the lands of the continent and islands situated and lying in America within the headland or promontory commonly called Cape Sable, lying near the latitude of 43° or thereabout, from the equinoctial line toward the north; from which promontory stretching toward the shore of the sea to the west to the road of ships commonly called St. Marys Bay, and then toward the north by a direct line, crossing the entrance or mouth of that great road of ships which runs into the eastern tract of land between the territories of the Souriquois and the Etchemins, to the river cailed by the name of St. Croix, and to the most remote spring or fountain from the western part thereof which first mingles itself with the river aforesaid; whence, by an imaginary direct line, which may be conceived to go through or run toward the north, to the nearest road of ships, river, or spring emptying itself into the great river of Canada; and from thence proceeding toward the east by the shores of the sea of the said river of Canada to the river, road of ships, or shore commonly known and called by the name of Gachepe or Gaspe." But the translations of the Americans were merely for form's sake, as the original Latin, in a copy furnished from a British public office, was laid before the King of the Netherlands; and no fear need have been felt that the umpire would not have been able to judge whether the translations were true or not. It was rather to be inferred that he, in examining a question submitted in a language foreign to him, would have found the Latin quite as intelligible as the English. This examination, however, is wholly superfluous.

From whatever source the negotiators of the treaty of 1783 derived their view of the boundary, that instrument directs that it shall be a due north line from the source of the river St. Croix. This expression is too definite to require explanation or illustration, and it is only for those purposes that any other instrument can be permitted to be quoted.

occur three times, versus septentrionem" In the passages referred to the words " and in two of the instances are qualified by the context in such manner as to leave no possible doubt as to the meaning. The first time they occur the words of the passage are, "prope latitudinem quadraginta trium graduum aut eo circa versus The free translation into modern idiom is beyond doubt, "near septentrionem." the forty-third degree of north latitude or thereabout;" and the direction toward the north must be along a meridian line on which latitude is measured, or due north. Messrs. Mudge and Featherstonhaugh, instead of connecting in their translation the words versus septentrionem" with the words "prope latitudinem," etc., with which they stand in juxtaposition in the Latin text which they quote, connect them with the words "ad occidentem tendentem," which occur in the next clause of the sentence, even according to their own punctuation. We note this as a false translation, although it does not touch the point in dispute. They have, indeed, attempted to use it in their argument; but even if the use they make of it had been successful their inferences fall, because drawn from erroneous premises.

The second clause in which the words occur is as follows: "Ad stationem navium anctæ Mariæ vulgo St. Marys Bay, et deinceps versus septentrionem per directam lineam introitum sive ostium magnæ illius stationis navium trajicientem," etc., "ad fluvium vulgo nomine Sanctæ Crucis appellatum." Here the line, although directed to be drawn toward the north, is also directed to be drawn between two given points, and it is clear that under the double direction, if they should differ from each other, the position of the given points must govern, and the line be traced from one of them to the other, no matter what may be their bearings.

The last time the words occur is after the direction that the line shall pass up the St. Croix and to the most remote western spring or fountain of that stream, “unde per imaginariam lineam directam quæ pergere per terram seu currere versus septentrionem concipietur." Here alone can any doubt exist as to the meaning of the terms, and that is easily solved.

Now a direct line toward The boundary pointed out in the instrument is "such as may be conceived to go or run toward the north by (per) a direct (directam) line.'

the north can be no other than a meridian line. Had it been merely a straight line of vague northerly direction which was meant, rectum, the usual expression for a mathematical straight line, would have been used instead of directam. It is, moreover, to be

considered that the Romans had names both for the northeast and northwest points of the compass, and that the expression "versus septentrionem" in its most vague application could not possibly have admitted of a deviation of more than two points on either hand. Had the direction intended deviated more than that amount from the true north, the Latin term corresponding to northeast or northwest must have been used. Nor is this a matter of mere surmise, for in a passage immediately following that which has been quoted the direction through the Gulf of St. Lawrence toward Cape Breton is denoted by the term "versus Euronotum," leaving no possibility of doubt that had the line directed to be drawn from the source of the St. Croix been intended to have a northwestern bearing the appropriate Latin words would have been employed.

It is, besides, to be recollected that the instrument was drawn by a person using habitually and thinking in a modern idiom, and that in translating the English words due north into Latin no other possible expression could suggest itself than the one employed. Such, then, was the sense appropriately given to the Latin words, first in the commission of Governor Wilmot and his successors, governors of Nova Scotia, and subsequently in the commission of all the governors of New Brunswick from the time that it was erected into a province until the question was referred to the King of the Netherlands. In this reference, although a translation was given in the American argument, it was not as quoted by Messrs. Featherstonhaugh and Mudge, but was in the words which have already been cited.

Connected with this subject, although, like it, wholly irrelevant, is another conclusion which Messrs. Mudge and Featherstonhaugh attempt to draw from the same grant to Sir William Alexander. That charter directs the line "versus septentrionem" to be produced "ad proximam navium stationem, fluvium, vel scaturiginem in magno fluvio de Canada sese exonerantem." It can hardly be credited that, although a literal translation of this passage is given, including the whole of the three terms naval station, river, or spring, that it is attempted to limit the meaning to the first expression only, and to infer that as Quebec, in their opinion, is the first naval station above Gaspe on the St. Lawrence, the line "versus septentrionem" was intended to be drawn toward that place, but that as "spring" is also mentioned the line must stop at the source of the Chaudiere. Now it has been uniformly maintained by British authorities, and most strongly in the discussion which preceded the War of 1756, that Nova Scotia extended to the St. Lawrence. The boundary of Sir William Alexander's grant was therefore to be changed from a geographical line to a water course as soon as it met with one, and the apparently useless verbiage was introduced to meet every possible contingency. Supposing, however, that it did not extend so far, the northwest angle of his Nova Scotia will be where the meridian line of the St. Croix crosses the Beaver Stream running into Lake Johnson, only a mile to the north of the point maintained by the American claim to be such.

The map of L'Escarbot, quoted by Messrs. Mudge and Featherstonhaugh, illus trates both this point and the second instance in which the term "versus septentrionem" is employed. On that map, due north of the Bay of St. Marys, a deep inlet of the Bay of Fundy is represented, and, continuing in the same direction, a deep inlet of the St. Lawrence is figured. The latter does not exist, but this map shows that it was believed to exist at the time of the grant, and must be the "statio navium" of that instrument.

This inlet of the Bay of Fundy occupies the position of the St. John, which is almost due north by the most recent determination from St. Marys Bay, and is so represented on their own map. That the St. John was by mistake arising from this cause taken for the St. Croix in the charter to Alexander is obvious from its being described as lying between the territories of the Etchemin and Souriquois. Now Etchemin, or canoe men, is the name given by the Micmac Indians to the race of the Abenakis, from their skill in the management of the canoe; and this race has always inhabited the river, whence one of their tribes is still called St. John's Indians. The language of this tribe, although they have lived apart for many years, is still perfectly intelligible by the Indians of the Penobscot, and those in the service of the commission conversed with perfect ease with the Indians of Tobique. Massachusetts, then, was right in claiming to the St. John as the eastern limit of the grant to Sir William Alexander, being the stream understood and described in it under the name of St. Croix, and wholly different from the river known to the French under that name. If, therefore, Great Britain should insist that the question in relation to the St. Croix shall be reopened, the United States would be able to maintain in the very terms of the original grant to Alexander (on which the British argument in 1797 rested) that the St. John is the St. Croix, and the boundary will be that river to its most northwestern source, the Asherbish, which flows into the upper end of Lake Temiscouata. Nova Scotia will then have recovered her lost northwest angle, which can not be

found in any of the many shapes under which the British argument has been presented, although it forms the place of beginning of what is called a grant to the United States.

Note VI.

The fact that a line drawn from the source of the Kennebec to the mouth of the Chaudiere or thereabout must be one of the boundary lines of the grant to the Duke of York has not escaped the notice of Messrs. Featherstonhaugh and Mudge; but they have not derived the true result from this discovery. The Kennebec being the western limit of the grant, the line in question bounds the territory on the southwest, while they infer that it bounds it on the northeast. In making this inference they appear to have forgotten that the St. Croix is the eastern boundary of the grant. By their argument the grant to the Duke of York is blotted wholly from the map, or, rather, becomes a mathematical line which is absurd.

Note VII.

No name which has ever been applied to any part of North America is as vague as that of Acadie. The charter to De Monts in 1604 extended from the fortieth to the forty-sixth degree of north latitude; that is to say, from Sandy Hook, at the mouth of the Hudson, to the peninsula of Nova Scotia. It therefore included New York, parts of New Jersey and Pennsylvania, and all the New England States, but excluded the disputed territory. His settlement was at the mouth of the St. Croix, but was speedily removed to Port Royal. The latter place was soon after destroyed by an expedition from Virginia under Argall. Under the title derived from this conquest it would appear probable that the celebrated grant to Sir William Stirling was made; but when his agents attempted to make settlements in the country they found that the French had preoccupied it. Although the son of Alexander succeeded in conquering the country granted to his father, and even beyond it to the Penobscot, it was restored to France by the treaty of St. Germains in 1634, and the Alexanders were indemnified for the loss by the Crown of England.

In the subsequent cessions to France after its occupations by the arms of Massachusetts, and in its final cession to Great Britain by the treaty of Utrecht in 1713, the country ceded is described as Acadie or Nova Scotia, with its ancient bounds (cum finibus antiquis). The uncertainty arising from this vague description became in 1750 a subject of controversy between France and England, and was one of the causes which led to the war of 1756. In this discussion both parties admitted that the names Acadie and Nova Scotia were convertible terms. England maintained that the territory thus named extended to the St. Lawrence; the French, on the other hand, insisted that their Acadie had never extended more than 10 leagues from the Bay of Fundy; while by geographers, as quoted by the British commissioners, the name was limited to the peninsula which forms the present Province of Nova Scotia.* If Acadie had been limited to the north by the forty-sixth degree of north latitude, as expressed in the charter of De Monts, that parallel is to the south of Mars Hill. The British Government, therefore, derives no title to the disputed territory from this source, as the title of Massachusetts and of Maine as her successor is admitted to all country south of that parallel.†

It is very easy to tell what country was actually settled by the French as Acadie. Its chief town was Port Royal, now Annapolis, at the head of the Bay of Fundy. Nearly all the settlements of the Acadians were in that vicinity, and for the most part within the peninsula.

From these seats they were removed in 1756 by Great Britain, and to them a remnant was permitted to return. The most western settlement of Acadians was on the St. John River near the present site of Fredericton, and no permanent occupation was ever made by them of country west of the St. Croix. It is even doubtful whether the settlement near Fredericton was a part of French Acadie, for it seems to have been formed by persons who escaped from the general seizure and transportation of their countrymen.

This settlement was broken up in 1783, and its inhabitants sought refuge at Madawaska; but it can not be pretended that this forced removal of Acadians subsequent to the treaty of 1783 was an extension of the name of their country. The whole

*Report of Featherstonhaugh and Mudge, p. 8.

+ It can not be seriously pretended that when by the treaty of St. Germains, in 1632, Acadie was restored to France the intention was to cede to her the colonies already settled in New England. Yet the language of the British commissioners would imply that this was the case were it not that they evidently consider the forty-sixth parallel as the southern boundary of the grant to De Monts, whereas it is the northern.

argument in favor of the British claim founded on the limits of ancient Acadie there. fore fails:

First. Because of the inherent vagueness of the term, on which no settled understanding was ever had, although England held it to be synonymous with Nova Scotia and France denied that it extended more than 10 leagues from the Bay of Fundy. Second. Because by its original definition in the grant to De Monts it excludes the whole disputed territory on the one side; and

Third. Because in its practical sense, as a real settlement, it is wholly to the east of the meridian of the St. Croix, and this excludes the whole of the disputed territory on the other.

The portion of the territory granted to the Duke of York, and which is now the subject of dispute, therefore can not be claimed as a part of Acadie, as it never fell within its limits either by charter or by occupation.

Note VIII.

[Extract from the award of the King of the Netherlands.]

Considering that in 1763, 1765, 1773, and 1782 it was established that Nova Scotia should be bounded at the north as far as the western extremity of the Bay des Chaleurs by the southern boundary of the Province of Quebec; that this delimitation is again found with respect to the Province of Quebec in the commission of the Governor-General of Quebec of 1786, wherein the language of the proclamation of 1763 and of the Quebec act of 1774 has been used, as also in the commissions of 1786 and others of subsequent dates of the governors of New Brunswick, with respect to the last-mentioned Province, as well as in a great number of maps anterior and posterior to the treaty of 1783; and that the first article of the said treaty specifies by name the States whose independence is acknowledged; but that this mention does not imply (implique) the entire coincidence of the boundaries between the two powers, as set. tled by the following article, with the ancient delimitation of the British Provinces, whose preservation is not mentioned in the treaty of 1783, and which, owing to its continual changes and the uncertainty which continued to exist respecting it, created from time to time differences between the provincial authorities.

Note IX.

[Article IV of the convention of 1827.]

The map called Mitchell's map, by which the framers of the treaty of 1783 are acknowledged to have regulated their joint and official proceedings, and the Map A, which has been agreed on by the contracting parties as a delineation of the water courses, and of the boundary lines in reference to the said water courses, as contended for by each party, respectively, and which has accordingly been signed by the above-named plenipotentiaries at the same time with this convention, shall be annexed to the statements of the contracting parties and be the only maps that shall be considered as evidence mutually acknowledged by the contracting parties of the topography of the country.

It shall, however, be lawful for either party to annex to its respective first statement, for the purposes of general illustration, any of the maps, surveys, or topographical delineations which were filed with the commissioners under the fifth article of the treaty of Ghent, any engraved map heretofore published, and also a transcript of the above-mentioned Map A or of a section thereof, in which transcript each party may lay down the highlands or other features of the country as it shall think fit, the water courses and the boundary lines as claimed by each party remaining as laid down in the said Map A. But this transcript, as well as all the other maps, surveys, or topographical delineations, other than the Map A and Mitchell's map, intended to be thus annexed by either party to the respective statements, shall be communicated to the other party, in the same manner as aforesaid, within nine months after the exchange of the ratifications of this convention, and shall be subject to such objections and observations as the other contracting party may deem it expedient to make thereto, and shall annex to his first statement, either in the margin of such transcript, map or maps, or otherwise.

Note X.

[Extract from the award of the King of the Netherlands.]

Considering that, according to the instances alleged, the term highlands applies not only to a hilly or elevated country, but also to land which, without being hilly, divides waters flowing in different directions, and that thus the character, more or

less hilly and elevated, of the country through which are drawn the two lines respectively claimed at the north and at the south of the river St. John can not form the basis of a choice between them.

Note XI.

The reason of the double delineation of the Restigouche on the map of Mitchell and several others of ancient date is obvious. A mistake was common to them all by which the Bay of Chaleurs was laid down too far to the north. The main branch, or Grande Fourche, of Restigouche (Katawamkedgwick) has been reached by parties setting out from the banks of the St. Lawrence at Metis, and was known to fall into the Bay of Chaleurs, while the united stream had also been visited by persons crossing the wagansis of Grand River and descending the Southwestern Branch. The map makers could not, in consequence of the error in latitude, make their plat meet, and therefore considered the part of the united streams reached in the two different directions as different bodies of water, and without authority sought an outlet for that which they laid down as the southernmost of the two in another bay of the Gulf of St. Lawrence. On many of the maps, however, the small stream which modern geographers improperly call Restigouche is readily distinguishable under the name of Chacodi.

Note XII.

In the argument of the British commissioners under Jay's treaty the following points were maintained, and, being sanctioned by the decision of the umpire, became the grounds of an award acceded to by both Governments:

First. That the limits of Nova Scotia had been altered from the southern bank of the St. Lawrence to the highlands described in the treaty of peace.

Second. That if the river Schoodiac were the true St. Croix the northwest angle of Nova Scotia could be formed by the western and northern boundaries (the meridian line and the highlands).

Third. That the territory of Acadie, or Nova Scotia, was the same territory granted to Sir William Alexander.

Fourth. That the sea and Atlantic Ocean were used as convertible terms.

Fifth. That from the date of the treaty of Utrecht the boundary between Massachusetts and Nova Scotia was that of the patent to Sir William Alexander.

Sixth. That the Provinces of Quebec and Nova Scotia belonged to and were in possession of His Britannic Majesty in 1783, and that he had an undoubted right to cede to the United States such part of them as he might think fit.

Seventh. That the due north line from the source of the St. Croix must of necessity cross the St. John.

It has since been maintained on the part of Great Britain:

First. That the limits of Nova Scotia never did extend to the St. Lawrence.

Second. That the northwest angle of Nova Scotia was unknown in 1783.

Third. That Acadie extended south to the forty-sixth degree of north latitude, and was not the same with Nova Scotia. Fourth. That the sea and the Atlantic Ocean were different things.

Fifth. That the claims and rights of Massachusetts did not extend to the western bounds of the grant to Sir William Alexander.

Sixth. That this being the case the cession of territory not included within her limits is void.

Seventh. That it could never have been intended that the meridian line should cross the St. John.

Note XIII.

It has been pretended that the grant of the fief of Madawaska in 1683 can be urged as a bar to the claim of Massachusetts. That fief, indeed, was among the early grants of the French governors of Canada, but it is not included in the claim which the French themselves set up. It was therefore covered by the Massachusetts charter, because the grant had never been acted upon. Even up to the present day this fief can hardly be said to be settled or occupied except by the retainers of the garrison of Fort Ingall, and from all the evidence which could be found on the spot it appeared that no settlement had ever been made upon it until the establishment of a posthouse some time between the date of the treaties of 1783 and 1794. It therefore