United States. Dept. of State.

Maine boundary--Mr. Greely, &c. .. online

. (page 14 of 56)
Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 14 of 56)
Font size
QR-code for this ebook


I which uncertainty arose from facts and circumstances which existed long
before, and at the time of concluding the treaties, and which were not
removed by the treaty, in consequence of the river St. Croix not being
designated with any more particularity than it was before, in the patents,
charters, acts of Parliaments, and documents, in which it had been men-
tioned ; and, also, that in the discussions on the subject between the
Governments of the United States and Great Britain, it had been admit-
ted, more especially by the agent for the latter, that let the commission-
ers designate what river they would as the river St. Croix truly intend-
ed by the treaty of peace, from the source of that river, the line run due
north to the highlands, the southern line of the Government of Quebec,
and the northern line of Massachusetts, and the Province of Nova Scotia;
and in any event, even if they adopted the most western point, which he
described as the head of the river St. Croix, the line running north must
cross the river St. John to the highlands, dividing the waters which fall
into that river from those which fall into the river St. Lawrence.*

It also having been further shown, that since 1798, when the river St.
Croix was designated by the commissioners under the treaty of 1794,
from all the correspondence and treaties which had been formed or pro-
posed to be formed by the commissioners of the two Governments, the
right of the United States had not been considered any way doubtful,
, and the whole object of the arrangements thus attempted to be made had
been limited to surveying and marking the line.

With a recurrence to these facts and circumstances, a more particular
attention to the correspondence which preceded the treaty of Ghent,
which is hereinbefore quoted, to the end that the true intent and mean-
\ ing of the contracting parties in the fifth article of that treaty may be
more clearly ascertained and better understood, is not deemed unim-
portant.

The British commissioners ask a revision of the boundary line be-
tween the United States and the adjacent British colonies, disclaiming
expressly, at the same time, any disposition to acquire an increase of ter-
ritory, and limiting their proposition to the simple fact of so ascertaining
the line as to prevent uncertainty and dispute. Such was their hrst
proposition ; but, as the conferences progressed, they, in some measure,
varied their proposition ; and, instead of asking simply a revision of the
line, to prevent uncertainty and dispute, they ask a direct communica-
tion from Halifax and the Province of New Brunswick to Quebec ; and
when they are requested to explain, explicitly declare that it must be

•See Appendix 11.



108 [ Senate Doc. No. 17 I. J

done by a cession of that portion of the District of Maine which inter-
venes between New Brunswick and (Quebec, and prevents a direct com-
munication.

lleie they clearly and distinctly ask the territory as a cession, there-
by conceding the title is not in them, which the subordinate agents, since
appointed, have had the ingenuity to claim as a right. The American
conimissioneis most clearly and explicitly deny any authority, on their
part, to cede any j)ortion of the territory asked of them, whether to se-
cure the right of passage between their dilVerent Provinces or otherwise,
and the denial is repeated as often as the subject recurs in the confer-
ences or correspondence.

The British commissioners, in giving a construction to their own prop-
osition for securing a direct communication between New Brunswick
and Quebec, say : " Their proposal left it open to the American com-
missioners to demand an equivalent for such cession, in territory or other-
wise." Here our right is again conceded, in language which admits no
doubt ; for the supposition that the British would consent to purchase of
us that territory to which they had title, is absurd and preposterous.
The British are too vigilant, in their negotiations, to overlook their own
claims, whether well or ill founded. They are not generous beyond
what their interest dictates, nor are they liable to the imputation of un-
due or disinterested generosity in their negotiations.

The American ministers most explicitly stated that they were not
instructed to agree to any revision of the line, where no uncertainty or
dispute existed, and that they could perceive no uncertainty or matter
of doubt in the treaty of 1783, with regard to that part of the boundary
of the District of Maine which would be atlected by the proposal of
Great Britain on the subject. That they never understood that the
British plenipotentiaries, who signed that treaty, had contemplated a
boundary dillerent from that fixed by the treaty, and which requires
nothing n)ore, in order to be definitively ascertained, than to be surveyed
in conformity with its provisions. The subject not having been a mat-
ter of uncertainty or dispute, they were not instructed upon it, and had
no authority to cede any part of the State of Massachusetts, even for
what the British might consider a fair equivalent.

To which the British ministers replied that, although the American
commissioners acknowledged themselves to be instructed to discuss the
revision of the boundary line, yet, by assuming to decide for themselves |
what was or what was not a subject of uncertainty or dispute, they had
rendered their powers nugatory or inadmissibly partial.

The American commissioners having stated their construction of the i
treaty of 1783, as it applied to the line between Maine and the Provinces \
of Nova Scotia and Canada, say that they have not pretended to assume '
anything, but sh;ill persevere in their opinions until the British com-
missioners should point out in what respect ihe part of the boundary,
which would be allected by their |)roposal, is such a subject of uncer-
tainty or dispute. That all the doubts which could have ever existed in
relation to the line were settled under the treaty of 1794, and were
pr('j)ared to proj)ose the appointment of commisioners to extend the lines
to the highlands, in conformity to the treaty of 1783. That the proposi-
tion of the British was to vary those lines, by obtaining a cession of the



[ Senate Doc. No. 171. J 10 >

territory between New Brunswick and Quebec, although that territory
■was unquestionably included within the boundary lines fixed by the
treaty.

Although the subject is again thus clearly pressed upon the considera-
t-ion of the British coniniissioners, and they aic called upon to point out
any uncertainty or dispute, or cause ol' uncertainty or dispute, in relation
to the boundary, with a perfect understanding that their acquiescence
would be taken as the admission of the fact, to wit: that there was no
uncei tainty or dispute as to the boundary line ; they pointed out no un-
certainty, but contented themselves by saying the "British Government
never required that all that portion of Massachusetts which intervenes
between (he Province of New Brunswick and Quebec should be ceded
to Great Britain, but only that small portion of territory which interrupts
the communication between Halifax aud Quebec, (there being much
doubt whether it does not alieady belong to Great Britain.") Here no
uncertainty or dispute is pointed out : they do not once say the line
stops at Mars Hill, or any other point, but admit that it does not, by in-
variably asking the territory, or a communication between New Bruns-
wick and Quebec, or Halifax and Quebec, as a cession. Instead of meet-
ing the proposition of the American commissioners, in the frankness and
candor with which it was made, they do no more than superadd a doubt,
which the whole correspondence shows they did not believe, perhaps
with a glimmering hope that the British Government might find some
daring agent who would have the hardihood to claim, and by ingenious
sophistry endeavor to maintain, as a right, that which, from their con-
victions of right and justice, they requested only as a cession ; some one
who would not be restrained by that high-minded and honorable course
which ought ever to be preserved, to maintain the relations of peace
and harmony between nations, but would sacrifice every consideration
ot that kind to acquire a temporary advantage, regardless of its future
results.

After the Biitish had taken military possession of Castine, and claim-
ed, from that ciicumstanee, the military possession of the territory of the
State of Maine east of Penobscot river, and having altogether failed, even
in the prospect of obtaining any part of the State of Maine by cession,
they change their proposition, and, to effect the same object, proposed
the principle of uti possidetis as the basis, subject to such modifications
as mutual convenience may be found to require. To this proposition
the American commissioners, promptly and unequivocally, as they had
done on all other occasions, refused treating " on the principle of uti
possidetis, or upon any other principle involving a cession of any part of
the territory of the United States."

Can it for a moment be supposed that when the British commissioners
so often requested the territory as a cession, and expressed a disposition
to give an equivalent, if it would be received, and when they were as
often, and peremptorily denied, on the ground of total want of authority
to cede, that it was the intention of the commissioners to do anything
more than to provide for the survey and marking of the lines, and to
guard against any possible difficulties of a minor character, such as the
variation of the needle, or the precise spot where the corner, to wit : the
northwest angle of Nova Scotia should be fixed on the range of high-



110 [ Senate Doc. No. iH. ]

lands limiting the sources of those rivers which emj)ty themselves into
the river St. Lawrence, or some other possible ditlicuities of a similar
character, none of which would vary the lines materially, or in any im-
portant degree, to either Government? >Mien the whole is faiily and
candidly examined, such must be the conclusion. No other conclusion
can be made, unless it be on tlie groined that the American commission-
ers undertook to exercise a power ^vhich they so often and explicitly
declared to the British they did not possess, and if they did exercise a
power which they did not possess, their acts were not obligatory upon
the Government.

A careful examination of the fifth article of the treaty of Ghent does
not involve a conclusion that the commissioners departed from the
powers given theni, and their repeated and reiterated declarations. The
part of the article relating to the point under discussion is as follows:
" Whereas, neither that point of the highlands, lying due north from the
source of the river St. Croix, and designated in a I'ormer treaty of peace
between the two Poweis as the northwest angle of Nova Scotia, nor the
northwesternmost head of Connecticut rivei-, has yet been ascertain-
ed ; and w hereas that part of the boundary line between the dominions
ol' the two Powers, which extends Irom the source of ihe river St. Croix,
directly north, to the abovementioned northwest 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 northwesternmost head of Connecticut river; thence
down along the middle of that river to the forty-fifth degree of noith
latitude ; thence, by a line due w est on said latitude, until it strikes the
river Iroquois or Cataraguy, has not yet been surveyed ; it is agreed that,
for these several purposes, two commissioners shall be appointed, sworn
and authorized to act exactly in the manner directed, with respect to
those mentioned in the next preceding article, unless otherwise specified
in the present article. The said commissioners shall Iiave power to
ascertain and determine the points above mentioned, in conformity with
the provisions of the said treat}' of peace, of one thousand seven hundred
and eighty-three, and shall cause the boundary aforesaid to be surveyed
and marked according to the said provisions. The said commissioners
shall make a map of said boundary, and annex it to a declaration under
their hands and seals, certifying it to be a true map of said boundary,
and particulaiizing the latitude of the northwest angle of No^•a Scotia,
and of the northwesternmost head of Connecticut river, and of such other
points of said boundary as they may deem proper."

Here the question may be repeated, has Nova vScotia two northwest
angles? or an ideal one, placed where the " ci//>irff7_?/" or the interested
views of either party may dictate ? or is the northwest angle of Nova
Scotia, the northwest angle of Nova Scotia as established by the Crown
and Goveinment of Great Britian, adopted by the treaty of 1783, and
recognised in the discussions by the agents under the fifth article of the
treaty of 1794, and also lecognised by all subsequent discussions be-
tween the United States and Great Britain? It cannot be reasonably
supposed that the commissioners had any other angle in view, especially
as the article seems to recognise and place the location of the angle on
the construction of the treaty of 178 i, explained as it was by the treaty



I Senate Doc. No. 17 1. ] 111

of 1794, and the discussions under that treaty. It cannot be supposed
(hat the British commissioners expected to 2,ain that which tliey had
requested as a cession, or the American commissioners expected to lose
anything which they had denied, IVom the language used and references
made in the article above quoted ; but it is to be supposed that both
parties, in agreeing to the article, limited to the description in the treaty
of 1783, as tlie same iiad been defined, and the rights of the parties under
it had been explained by direct and implied acknowledgments of its true
construction, from the time of its adoption, intended simply to provide
for the survey and marking of the line. No other conclusion can follow,
unless it be supposed that the high-minded and honorable men who
negotiated the treaty did on the one part resort to the most despicable
chicanery, and the other to a gross and palpable violation of the power
and authority to them delegated ; neither of which can be true. It fol-
lows, then, that to fulfil this article, nothing more was required than to
survey and mark the lines; and that the ditiiculties which could arise, if
any, were of minor consequence, not involving, in any event, but a
trifling extent of territory, and of little importance to either Government,
and by no means involving the title to the intervening territory between
New Brunswick and Quebec, which had often been sought as a cession,
to secure a direct communication, and as often denied.

If the agents and commissioners of the two Governments have depart-
ed from this plain and natural interpretation of the treaty, they must have
erred from causes which are creditable to neither. If a line were to be
established, contrary to this obvious construction, it is to be foreseen
that the party thus deprived of its rights would imbibe a spirit not to be
subdued, and which would seek its redress whenever it could, at any
sacrifice. If the British colonists were to be governed by their true
interests, they would not endeavor to acquire anything by construction,
against the true and common-sense interpretation of all the treaties, be-
cause in that they would discover the germes of eternal hostility.

If, in the prosecution of the duties under this article, the agent of the
United States has misconstrued and extended its application beyond its
plain and obvious construction, or had not a clear and distinct view of
the meaning of the terms " highlands ivhich divide the luaters^'''' in the
treaty of 1783, or was bewildered by mountains, or mountain langes,
when even mole hills answer the description precisely, if they do " divide
the waters which flow into the river St. Lawrence from those which fall
into the Atlantic," and if the British agent, in the prosecution of his
duties, under the same article, has pretended that the northwest angle
of Nova Scotia is at Mars Hill, and that the line of the United States
runs southwestwardly from that point, when the territory extending
north, northwest, west, and southwestwardly, is claimed as a part of the
ancient Province of Nova Scotia, thereby destroying the northwest angle
of Nova Scotia, which had been established by a series of acts of the
British Government, and acknowledged by them to this time, and sub-
stituting therefor a southwest angle, and, if from the course, so absurd
and preposterous in itself, ingenuity should obtain a temporary triumph
over right, a question will arise, growing out of the nature of and the
organization of the State and National Governments — has the United
States any constitutional authority to cede any part of an independent
sovereignty composing one of its members.'*



1(2 [ Senat*^ Doc. No. 171.]

The commissioners of the United States who negotiated the treaty of
Ghent unilormly denied the light of cession; but whether they founded
their denial on tiie want of authority in the instructions given them, or
upon tlhe constitution of the United States, is not perfectly clear. If
upon tho first, they adopted a right course ; if upon the last, their course
■was also right ; and there must be perfect hurniony of oj)inion, because
either principle preserves the rights of the individual States, On
this subject it may be iuipoitant to consider the object and nature of
the association of the States, which led to the adoption of the consti-
tution.

The General Governn)cnt, which had originated in the oppression of
Great Britain, and been sustained by the pressure of an external enemy,
and had carried the country through the Revolution, when peace was re-
stored, was found to be too feeble for any valuable purpose to the States.
Its inherent defects had, by a few years' experience, been shown, and
the States, for want of general union, were in danger of degenerating and
falling into anaichy, and of becoming a prey to each other, or any for-
eign nation. The independent sovereignties saw the necessity of asso-
ciating anew ; which they did, and in that association mutually delegated
limited parts of their sovereign power, for the greater security of those
retained.

As in the first confederation mutual defence and protection was a pri-
mary object, so it was in the last confederation ; a mutual protection,
not limited to the personal rights of individuals, but extended to the full
and free exercise of the whole sovereign power, not delegated, to the
extent of the territorial jurisdiction of the State. With this view of the
object of the confederation, composed as it was of independent sove-
reignties, it cannot be supposed that they ever intended to give to the
General Government any power by which they might be destroyed and
consolidated, or by which even their rights of sovereignty and jui i:?diction
might be abridged. It has never been pretended that Congiess has the
power of taking from one State and giving to another, or to incorporate
new States within the limits of old ones; nor has it ever claimed to ex-
ercise such a power. The most it has ever done, or has a constitu-
tional right to do, has been, to give its consent to the compact made
between the parties immediately interested, and to admit the new Stat?
into the Union.

If Congress do possess the power of ceding any portion of an inde-
pendent State, they possess a power to break down the State sovereign-
ties by which they were created, and at their pleasure to produce a con-
solidation of those sovereignties ; a power which was never delegated
or intended. If, therefore, the Congress of the United States attempt to
exercise such a power, the State, thus deprived of, or limited in, its
rights of sovereignty, must submit, or enforce its rights.

The rights of protection in the exercise of the sovereign power of the
State are equal, whether it is an exterior or interior State, and Congress
can have no more constitutional right to take fiom Maine and cede to
New Brunswick, than they have to take from Virginia a part of her ter-
ritory, and cede it to North Carolina. Congress has not claimed to
exercise such a power, for the construction of the treaty of Ghent, herein-
before given, docs not involve sucli a power, unless from a misconstructioa



[Senate Doc. No. 171. J 113



of its provisions, limiting, as it does, the whole power of the commission
to the surveying; and maikiiij^ of the linos, and erecting its monuments,
according to the treaty of 17S3.

But it will at once be seen, if the Government of the United States
^yield to the misconstructions of the agents, so far as to be endangered
by the result, that by the misconstructions of the one and the ingenuity of
the other, arising from a strong desire to acquire for his country the ter-
ritory which had been so often but unsuccessfully sought as a cession, and
by its final result the lines of the State of Maine are materi.dly changed,
she will be as much dispossessed of her territory and sovereignty, as she
would have been by a direct exercise of the power of cession. The one
mode, equally with the other, involves an assumption of power which
was never delegated. If such an unfortunate occurrence ever arises,
from any cause, the duty which the State owes herself and her sister
republics is plain.

While it is the duty, as well as the interest, of individuals, as well as
States, to yield a peaceable and quiet obedience to every exercise of
constitutional power on the part of the Government of the United States,
it is equally theh- duty, and their interest, to resist all encroachments on
the rights which they have reserved. If a part of the State of Maine
should be surrendered by the Government of the United States, either
by a direct or indirect exercise of the power of cession, it will then be a
duty which she owes herself to consider whether she has, by such an
invasion of her rights, lost her right of sovereignty and jurisdiction. Such
an exercise of power can have no obligatory force; and, unless Maine
quietly and peaceably submits, it will be the duty of the States, a duty
imposed by the Federal Government, to aftbrd her aid and protection,
and to aid her in regaining her rights.

From the provisional treaty of peace in 1782 to the treaty of Ghent,
for a period of more than thirty-two years, the British always conceded
our title and our rights, whenever the subject was presented in the dis-
cussions between them and the United States. Even in the argument
of the British agent, under the fourth article of the treaty of Ghent, de-
livered before the commissioners in September, 1817, after the board,
under the fifth article of the same treaty, and the agents had made their
agreement for a survey, he unequivocally admits and shows our title. He
says: "That the northwest anjile of Nova Scotia, mentioned in the
treaty as the commencing point in the boundary of the United States, is
the northwest angle of the said Province of Nova Scotia, designated in the
grant to Sir William Alexander in 1621, subject only to such altera-
tions as was occasioned by the erection of the Province of Quebec,
, 1763."

Since the treaty of Ghent, and the entire failure on the part of the
British to obtain the territory by cession or purchase, and since Septem-
ber, 1817, they have pretended to claim it as a right, and do, in fact,
pretend to claim a much greater extent than they had ever sought by-
way of cession, by extending the claim much further south and west
than is necessary to secure a communication between Halifax and
Quebec.

The idea of claim, as they at present make it, probably originated
with some of their subjects in the Provinces, who, having a great desire
8



t 14 [ Senate Doc. No. 171.]

to hold (he country, endeavored to stimulate the Government of Great
Britain, that she nii'^ht,by some means, be induced to obtain it. In order
to show the oii':;in as well as the substance of their claim, as they now
make it, the following extract is made liom a work published a little be-
fore the orjranizaiion of the commission under the fifth article of the*
treaty of Ghent, entitled " A topographical description of the Province
of Lower Canada, with remarks upon Upper Canada, and on the rela-
tive connexion of both Provinces with the Inited States of America,
by Joseph Bouchette, Surveyor CJeneral of Lower Canada, Col. C. M."



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 14 of 56)