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.
[Footnote 46: Sebastian Cabot, in the employ of Henry VII, discovered
the continent of North America 24th June, 1497, and explored it from
Hudsons Bay to Florida in 1498. Columbus discovered South America 1st
August, 1498, while the voyage of Vespucci, whose name has been given to
the continent, was not performed until 1499.--HUMBOLDT.]
[Footnote 47: See Note VI, p. 147.]
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]
[Footnote 48: Haliburton's History, Vol. I, pp. 83-87.]
[Footnote 49: Haliburton's History, Vol. I, pp. 244-289.]
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.
[Footnote 50: See Note VII, pp. 147, 148.]
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.[51]
[Footnote 51: Report of Messrs. Featherstonhaugh and Mudge, p. 6.]
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:
"The line, crossing the river St. Lawrence and the Lake Champlain in 45°
of north latitude, passes along the highlands which divide the rivers
that empty themselves into the St. Lawrence from those which fall into
the sea, and also along the north coast of the Bay des Chaleurs and the
Gulf of St. Lawrence to Cape Rosieres," etc.
In the same month of October, 1763, the limits of the royal Province of
Nova Scotia are fixed, in the commission to Governor Wilmot, on the west
"by the said river St. Croix to its source, and by a line drawn due
north from thence to the southern boundary of our Province of Quebec; to
the northward, by the same boundary, as far as the western extremity of
the Bay des Chaleurs."
Here, then, we find the first mention in an English dress of the line
to be drawn due north from the source of the St. Croix. There is no
evidence that it was a translation of the terms in the grant to Sir
William Alexander, but if it were it was made not by Americans, but by
Englishmen; and not only made, but set forth under the high authority of
the royal sign manual and authenticated by the great seal of the United
Kingdom of England and Scotland.
The due north line from the source of the St. Croix, meeting the south
bounds of the Province of Quebec, forms two angles. One of these was
the northeast angle of the Province of Sagadahock; the other is the
northwest angle of Nova Scotia. It aright be debated which of the
streams that fall into Passamaquoddy Bay was the true St. Croix, but
such a question could be settled by reference to evidence, and has been
thus settled by the award of the commissioners under the fifth article
of Jay's treaty. Among the many branches of a stream it may for a moment
be doubted which is to be considered as its principal source, but this
can be ascertained by proper methods, and it has been ascertained and
marked with a monument by the same commissioners. The tracing of a
meridian line may be a difficult operation in practical surveying, but
it can be effected by proper instruments and adequate skill, and this
task has in fact been performed by one of the present commissioners,
after being attempted by the surveyors under the fifth article of the
treaty of Ghent. The highlands are defined in the commission of Governor
Wilmot and the proclamation of 1763 beyond the possibility of doubt.
They are on the north shore of the Bay of Chaleurs as described in the
one instrument, and on the western extremity of that bay as described
by the other. They can therefore be found, and they have been found.
The Congress of 1779 and the framers of the treaty of 1783 were
therefore warranted in speaking of the northwest angle of Nova Scotia as
if it were a known point. It could have been laid down with precision on
any good map; it could be discovered by the use of adequate methods and
the expenditure of a sufficient appropriation; it was, in fact, as well
known as the forty-fifth and thirty-second parallels of latitude, which
are named in the same article of the treaty, or as the boundaries of
very many of the States which had united in the Confederation. These
were defined by the course and sources of rivers--by parallels of
latitude and circles of longitude, either of indefinite extent or
setting out from some prescribed point whose position was to be
determined. At the time of making these grants, as in the case before
us, many of the boundaries had never been visited by civilized men. Some
of these lines had, indeed, been sought and traced upon the ground in
pursuance of orders from the privy council of Great Britain or the high
court of chancery, and the recollection of the operation was fresh in
the memory of both parties. Thus in 1750 it was ordered by the latter
tribunal that the boundary on the lower counties on the Delaware (now
the State of that name) and the Province of Maryland should be marked
out. The boundary was an arc of a circle described around the town of
Newcastle, with a given radius, and a meridian line tangent thereto.
This was a far more difficult operation than to draw a meridian line
from a given point, such as the source of a river. It was thought
in 1763 worthy of the attention of the first assistant in the Royal
Observatory at Greenwich, and the American Rittenhouse was associated
with him. This operation was not only of great contemporary fame, but
is still quoted in English books among the data whence we derive our
knowledge of the magnitude and figure of the earth. So also the same
astronomer (Mason) had but a few years before the War of Independence
commenced the tracing of a parallel of latitude from the former line
to the westward, thus marking the respective limits of Pennsylvania,
Maryland, and Virginia. With such examples before them the framers of
the treaty of 1783 were warranted in considering the northwest angle
of Nova Scotia as a point sufficiently definite to be made not merely
one of the landmarks of the new nation, but the corner at which the
description of its boundaries should begin. It has been well remarked by
one of the commentators[52] on the report of Messrs. Featherstonhaugh
and Mudge that if the treaty of 1783 be a grant the grantors are bound
by rule of law to mark out that corner of their _own land_ whence the
description of the grant commences. The British Government therefore
ought, if it be, as it is maintained on its part, a grant, to have
traced the line of highlands dividing their Provinces of Nova Scotia
and Canada. Had this been done in conformity with the proclamation of
1763 and the commission to Governor Wilmot, the northwest angle of Nova
Scotia would be given by the trace of the meridian of the St. Croix.
So far from doing this, the question has been complicated by the denial
that the boundaries defined in that proclamation and in the treaty of
1783 were intended to be identical. The argument on this point was so
ingenious that the arbiter under the fifth article of the treaty of
Ghent did not consider the American case as made out,[53] and this doubt
was the principal ground on which his decision rested. It is therefore
an earnest of a more favorable state of feeling that the sophistry with
which this fact had been veiled, at least in part, is now withdrawn, and
that the commission whose report is under consideration frankly admit
this identity.[54] This admission being made, it is obvious that the
origin of the highlands of the treaty must be sought on the north shore
of the Bay des Chaleurs and at its western extremity, and it follows
that the point where this line of highlands is cut by the meridian of
the monument at the source of the St. Croix is the northwest angle of
Nova Scotia of the treaty of 1783, and must lie to the north of the
Restigouche, or in the very spot claimed by the United States.
[Footnote 52: Hon. John Holmes, of Maine.]
[Footnote 53: See Note VIII, p. 148.]
[Footnote 54: Report of Messrs. Featherstonhaugh and Mudge, pp. 6, 23.]
The British Government has not only failed in marking out the corner of
their territory at which the boundary of the United States begins, but
has in practice adopted a very different point as the northwest angle of
the Province of New Brunswick, which now occupies the place of ancient
Nova Scotia in its contiguity to the American lines. Up to the time of
the discussion before the King of the Netherlands the commissions of the
governors of New Brunswick had been, so far as the western and northern
boundaries are concerned, copies of that to Governor Wilmot. The
undersigned have no means of ascertaining when or how the form of these
commissions was changed, but it was found during the exploration of the
country that the jurisdiction of New Brunswick, limited at least to the
north of the St. John by the exploring meridian line, did not leave the
Bay of Chaleurs at its western extremity and follow thence the old
bounds of the Province of Quebec. It, on the contrary, was ascertained
that it was limited by the Restigouche as far as the confluence of its
southwestern branch, formerly known by the name of Chacodi, and thence
followed the latter up to the point where it is crossed by the exploring
meridian line. On all the territory thus severed from the ancient domain
of Nova Scotia permits to cut timber were found to have been issued by
Canadian authorities, and the few settlers derived their titles to land
from the same source.
Although this demarcation involves a double deviation from the
proclamation of 1763 (first, in following a river instead of highlands;
second, in taking a small branch instead of pursuing the main supply
of the Bay of Chaleurs), the northwest angle of Nova Scotia may be
considered as at last fixed by British authority at a point many miles
north of the point claimed to be such in the statements laid before
the King of the Netherlands on the part of Great Britain, and 48 miles
to the north of where the line of "abraded highlands" of Messrs.
Featherstonhaugh and Mudge crosses the St. John. Were it not that the
American claim would be weakened by any change in the strong ground on
which it has always rested, it might be granted that this is in fact the
long-lost northwest angle of Nova Scotia, and the highlands allowed to
be traced from that point through the sources of the branches of the
St. John and the St. Lawrence.
In proof of the position now assigned to this angle of New Brunswick,
and consequently of ancient Nova Scotia, in the absence of documents
which the archives of Great Britain alone can furnish, the map published
by the Society for the Encouragement of Useful Knowledge, the several
maps of the surveyor-general of the Province of Canada, and the most
recent map of the Provinces of Nova Scotia and New Brunswick, by John
Wyld, geographer to the Queen of Great Britain, may be cited.
It may therefore be concluded that the northwest angle of Nova Scotia
is no longer an unknown point. It can be found by a search conducted
in compliance with the proclamation of 1763 and the contemporaneous
commission of Governor Wilmot, and the researches of the present
commission show that it can not be far distant from the point originally
assigned to it in the exploring meridian line. The identity of the first
of these documents with the boundary of the treaty of 1783 is admitted,
and the latter is word for word the same with the description of the
eastern boundary of the United States in the same treaty. Moreover, a
northwest angle has been assigned to the Province of New Brunswick by
British authority, which, did it involve no dereliction of principle,
might without sensible loss be accepted on the part of the United
States.