CHAPTER II.

ISLANDS IN THE BAY OF FUNDY: COMMISSION UNDER ARTICLE IV. OF THE TREATY OF GHENT.

lands in the Treaty of Peace.

By the second article of the treaty of peace Stipulation as to Is- of 1783' the eastern boundary of the United States was declared to comprehend "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 middle of the mouth of the River St. Croix "in the Bay of Fundy," and from the middle of the mouth of the River St. Mary's in the Atlantic Ocean, "excepting such islands as now are, or heretofore have been, within the limits of the said province of Nova Scotia." The negotiators of the treaty of peace seem to have considered Passamaquoddy Bay either merely as a part of the Bay of Fundy, or else as the mouth of the St. Croix River. But, however this may be, the decision of the commissioners under Article V. of the Jay Treaty, that the Schoodiac was the true St. Croix and that its mouth was at Joe's Point, left most of the islands in Passamaquoddy Bay to the south of a line drawn east from the middle of the river's mouth; and, as these islands were within twenty leagues of the shores of the United States, the only question that remained to be determined was whether they were within the limits of the province of Nova Scotia. The same question arose in regard to the island of Grand Menan, in the Bay of Fundy proper.

It appears that soon after the conclusion of The King-Hawkes- the treaty of peace conflicting claims of sovereignty and jurisdiction arose in regard to some of the islands in Passamaquoddy Bay. Moose, Dudley, and

bury Convention.

1 Supra, p. 2.

2 Am. State Papers, For. Rel. I. 93.

Frederick islands were claimed by the British as well as by the American authorities. In 1801 Rufus King, then minister of the United States in London, was instructed to enter into negotiations for the settlement of the question of title to the islands and of the navigation of the channels between them.2 On the 12th of May 1803 he concluded with Lord Hawkesbury a convention, by Article I. of which it was provided that "the boundary between the mouth of the river St. Croix and the Bay of Fundy" should be "a line beginning in the middle of the channel of the river St. Croix, at its mouth, as the same has been ascertained by the commissioners appointed for that purpose;" that this line should run "thence through the middle of the chaunel between Deer island on the east and north, and Campo Bello island on the west and south, and round the eastern point of Campo Bello island, to the Bay of Fundy;" and that "the islands and waters northward and eastward of the said boundary, together with the island of Campo Bello," should belong to New Brunswick, and "the islands and waters southward and westward of the said boundary, except only the island of Campo Bello," to Massachusetts. Though this division of the islands formed the basis of the settlement that was finally made, the treaty never was ratified. An amendment by the Senate in regard to another matter was not accepted by the British Government, and in consequence the convention failed. A similar arrangement attempted by Messrs. Monroe and Pinkney and Lords Holland and Auckland, in 1807, also came to naught through the failure of the negotiations of which it formed a part.

3

Provisions of the
Treaty of Ghent.

During the war of 1812 the British seized and held possession of Moose Island, on which Eastport stands; and at the treaty of peace concluded at Ghent on December 24, 1814, though the negotiation was conducted on the basis of the status quo ante bellum, they refused to restore it. While therefore it was generally stipulated that all territory, places, and possessions taken by either party from the other during the war should be restored, it was specially provided that such of the islands in Passamaquoddy Bay as were claimed by both parties should remain in

Am. State Papers, For. Rel. I. 95, 96; II. 586.

2 Mr. Madison, Sec. of State, to Mr. King, July 28, 1801, Am. State Papers, For. Rel. II. 585.

3 Am. State Papers, For. Rel. II. 584.

the possession of the party in whose occupation they might be at the time of the exchange of the ratifications of the treaty, without prejudice to the rights of either party, till the question of title should be settled. For such a settlement, however, Article IV. of the treaty provided in the following manner:

"Whereas it was stipulated by the second article in the treaty of peace of one thousand seven hundred and eightythree, between His Britannic Majesty and the United States of America, that the boundary of the United States should comprehend 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 Nova Scotia; and whereas the several islands in the Bay of Passamaquoddy, which is part of the Bay of Fundy, and the Island of Grand Menan, in the said Bay of Fundy, are claimed by the United States as being comprehended within their aforesaid boundaries, which said islands are claimed as belonging to His Britannic Majesty, as having been, at the time of and previous to the aforesaid treaty of one thousand seven hundred and eighty-three, within the limits of the Province of Nova Scotia: In order, therefore, finally to decide upon these claims, it is agreed that they shall be referred to two Commissioners to be appointed in the following manner, viz: One Commissioner shall be appointed by His Britannic 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 so appointed shall be sworn impartially to examine and decide upon the said claims according to such evidence as shall be laid before them on the part of His Britannic Majesty and of the United States respectively. The said Commissioners shall meet at St. Andrews, in the Province of New Brunswick, and shall have power to adjourn to such other place or places as they shall think fit. The said Commissioners shall, by a declaration or

"The exception of Moose Island from the general restoration of territory is the only point on which it is possible that we might have obtained an alteration if we had adhered to our opposition to it. The British government had long fluctuated on the question of peace; a favorable account from Vienna, the report of some success in the Gulf of Mexico, or any other incident, might produce a change in their disposition; they had already, after the question had been referred to them, declared that they could not consent to a relinquishment of that point. We thought it too hazardous to risk the peace on the question of the temporary possession of that small island, since the question of title was fully reserved, and it was therefore no cession of territory." (Mr. Gallatin to Mr. Monroe, Sec. of State, Ghent, December 25, 1814, Adams's Writings of Gallatin, I. 646.)

report under their hands and seals, decide to which of the two contracting parties the several islands aforesaid do respectively belong, in conformity with the true intent of the said treaty of peace of one thousand seven hundred and eighty-three. And if the said Commissioners shall agree in their decision, both parties shall consider such decision as final and conclusive. It is further agreed that, in the event of the two Commissioners differing upon all or any of the matters so referred to them, or in the event of both or either of the said Commissioners refusing, or declining, or wilfully omitting to act as such, they shall make, jointly or separately, a report or reports, as well to the Government of His Britannic Majesty as to that of the United States, stating in detail the points on which they differ, and the grounds upon which their respective opinions have been formed, or the grounds upon which they, or either of them, have so refused, declined, or omitted to act. And His Britannic Majesty and the Government of the United States hereby agree to refer the report or reports of the said Commissioners to some friendly sovereign or State, to be then named for that purpose, and who shall be requested to decide on the differences which may be stated in the said report or reports, or upon the report of one Commissioner, together with the grounds upon which the other Commissioner shall have refused, declined or omitted to act, as the case may be. And if the Commissioner so refusing, declining or omitting to act, shall also wilfully omit to state the grounds upon which he has so done, in such manner that the said statement may be referred to such friendly sovereign or State, together with the report of such other Commissioner, then such sovereign or State shall decide ex parte upon the said report alone. And His Britannic Majesty and the Government of the United States engage to consider the decision of such friendly sovereign or State to be final and conclusive on all the matters so referred."1

Appointment of a Under this article the King of Great Britain Commissioner by on September 4, 1815, appointed as commisGreat Britain. sioner Thomas Barclay, who had served in a similar capacity under Article V. of the Jay Treaty. It appears, however, that the commission of Mr. Barclay did not reach New York, where he then held the post of British consulgeneral, till the 7th of August in the following year.2

As commissioner on the part of the United Appointment of a States, President Madison on January 16, Commissioner by 1816, appointed John Holmes, a resident of Massachusetts, but of that part of the State which was soon afterwards to become the State of Maine.

the United States.

Article VIII. of the treaty contains certain provisions as to procedure, 2 Rives's Correspondence of Thomas Barclay, 370.

After having served for several terms in the legislature of Massachusetts, Mr. Holmes was in 1817 elected to Congress. On the admission of Maine as a State, in 1820, he was elected to the United States Senate, where he served till 1833.1

On the 4th of September 1815 Lord CastleInstructions of the reagh dispatched to Mr. Barclay, in relation to the question under the fourth article, the following instructions:

British Commissioner.

"With regard to the regulation of your conduct in bringing to a favorable issue the first question namely, whether the several Islands in the Bay of Passamaquoddy and in the Bay of Fundy belong of right to the United States or to Great Britain; it may be necessary that you keep in mind (altho' in deciding upon it you are solely to be led by the Evidence that will be adduced in favour of the Claims of other countries [sic]) that His Majesty's right to those Islands is supposed to be founded on the Second Article of the Treaty of Peace of 1783 which excepted from the line 20 leagues from the line of Coast, by which it was then agreed to fix that side of the Boundary of the United States, such Islands as now are or heretofore have been within the Limits of Nova Scotia.-And that the Islands in question did come within the Limits of that Province, will be proved not only from the Circumstance of the Jurisdiction which the Government of Nova Scotia always was in the habit of exercising over the Inhabitants up to the Peace of 1783, but more forcibly from the fact that the original Patent or Grant (an extract of which I enclose) of the said Province made by King James the 5th to Sir William Alexander in 1621, after tracing the Boundaries of the United States (sic) in it's circumference proceeds to include in it all Islands &c., within Six Leagues of any part of the circumference.

"It cannot also have escaped your recollection that in the discussion in which you were engaged with the United States in 1796 and which terminated in your fixing the mouth of the River St. Croix at Joes Point, the point now at issue was in some degree decided, a reference to the Proceedings of the Commis sioners at that period will prove that the objection made to that decision on the part of the American Agent was that he (sic) conferred upon Great Britain the possession of the very Islands now under dispute, and he on that ground argued tho' ineffectually the impropriety of the decision itself."

In acknowledging the receipt of these inBritish Commission- structions Mr. Barclay, while expressing the er's Doubts as to opinion that the principles on which they were founded were, with respect to the islands in

Grand Menan.

Rives's Correspondence of Thomas Barclay, 357; Willis's History of the Law, the Courts, and the Lawyers of Maine, 275.