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Passamaquoddy Bay, perfectly correct and such as could not be controverted, yet disclosed an apprehension that it would be "difficult for His Majesty's Agent to support with equal evidence His Majesty's claim to the Island of Grand Manan in the Bay of Fundy, an island of far more national importance, than any of the others."!

Alexander.

2

The grant of Nova Scotia to Sir William Grant of Nova Scotia Alexander in 1621, to which Lord Castleto Sir William reagh referred, is printed in the original Latin in the evidence accompanying the statement submitted on the part of the United States to the King of the Netherlands under the convention of 1827, to which we shall refer hereafter. By this grant there were conveyed under the name of Nova Scotia to the grantee, his heirs or assigns in inheritance, "all and singular the lands, continents and islands situate and lying in America within the headland or promontory commonly called Cape Sable, lying near 43° north latitude, or thereabout; from which promontory stretching westwardly along the seashore to the roadstead of Saint Mary, commonly called St. Mary's Bay, and thence toward the north by a straight line crossing the entrance or mouth of that great ship road which runs into the eastern tract of land between the countries of the Souriquois and the Etchemins to the river commonly called St. Croix, ; including and comprehending within the aforesaid seashores and their circumferences from sea to sea, all lands and continents with the rivers, streams, bays, shores, islands or seas lying near or within six leagues of any part of the same on the western, northern or eastern parts of the said shores and precincts." The "great ship road" referred to is the Bay of Fundy. A line drawn across its mouth from St. Mary's Bay to the mouth of the river decided under Article V. of the Jay Treaty to be the true St. Croix, just touches the island of Grand Menan.

At this point two questions arose: First, Did the words "within six leagues of any part of the same" only mean within six leagues of the "seashores," or did they also mean within six leagues of the "circumferences" and "precincts," so as to include islands such as Grand Menan, lying less than six leagues to the west of the line drawn from St. Mary's Bay to the River

Rives's Correspondence of Thomas Barclay, 371.
Chapter IV

St. Croix? And second, Were the limits mentioned in the Alexander grant the true limits of the province?

Scotia.

The language by which the boundary was Commissions of Gov- defined in this grant was not adhered to in the ernors of Nova commissions given to the British governors. In the commission to Montague Wilmot of November 21, 1763, it was declared that although the province "hath anciently extended and doth of right extend" to the westward "as far as the river Pentagonet or Penobscot, It shall be bounded by a Line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth of the River St. Croix," etc. Nothing was said as to the islands westward of this line. In the commission to Lord William Campbell of August 11, 1765, the province was "bounded on the Westward by a line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth of the River St. Croix

to the Eastward by the said Bay (of Chaleurs) and the Gulph of St. Lawrence to the cape or promontory called Cape Breton in the Island of that name including that Island the Island of St. John and all other Islands within six Leagues of the coast and to the Southward by the Atlantick Ocean from the said cape to Cape Sable," etc. This restriction to the eastern "coast" of the provision including all islands within six leagues may also be found in the commission to Wilmot, to which we have just referred. The same definitions of the boundary were preserved in the commission to Governor Francis Legge of July 22, 1773. They do not comprehend the island of Grand Menan. It seems that the governor and council of Nova Scotia granted a reservation of the island to Sir William Campbell in 1773 till the King's pleasure should be known.2

1 Appendix 15, Statement of the United States before the King of the Netherlands, 1829; printed, but not published.

Rives's Correspondence of Thomas Barclay, 373. In a letter to Lord Castlereagh of August 12, 1816, Mr. Barclay, referring to the commissions of the provincial governors, said: "From these commissions it would appear that the Islands within six leagues of the coast are confined to the coast on the Eastern side of the Province of Nova Scotia. The Commissions refer to Islands on the East and South sides of the Province, but are silent with respect to those on the West Side. I attribute this to inattention in those who framed the commissions. At that period it was not perhaps considered necessary to be critically particular in such descriptions in commissions to Governors, the Limits and appendages of the respective provinces had been declared, but had never been surveyed and

Commission.

Owing to adverse winds and to calms, which Organization of the delayed the commissioners at Portland, they did not reach St. Andrews till the 22d of September 1816, six days later than the day they had appointed for their first meeting. They held their first session on the 23d of September, when they exhibited their commissions and took an oath of office, which was administered to them by Hugh Mackay, esq., one of His Majesty's justices of the peace and of the inferior court of common pleas for the county of Charlotte, in the province of New Brunswick.'

Secretary to the Com

mission.

The commissioners appointed as their secretary Anthony Barclay, a son of the British commissioner, at a salary of five hundred

pounds sterling a year.

As agents there appeared on the part of the American and British United States James Trecothick Austin, of Agents. Massachusetts, and on the part of Great Britain Ward Chipman, who acted as agent for that government under Article V. of the Jay Treaty. Austin was a leading member of the bar of Massachusetts, and from 1832 till 1843 was attorney-general of the State. His commission as agent was given by the President of the United States, who appointed him by and with the advice and consent of the Senate on the 11th of April, 1816. When Mr. Chipman ap

defined by actual measurement. His Majesty's Ministers could not have intended to take these Islands from the jurisdiction of Nova Scotia withont either erecting them into a distinct colony, which would have been ridiculous, or annexing them to the, then, Province of Massachusetts. Neither of these was the case, it therefore follows that they remained part or parcel of Nova Scotia under the Grant to Sir William Alexander. Besides it required express words to take those Islands formerly declared to appertain to Nova Scotia, from it: and your Lordship will presently perceive that on a nearly similar occasion in contracting the Western Limits of Nova Scotia express words were used in the commission to Governor Wilmot." (Id.374.)

The oath was as follows: "You do solemnly swear, impartially to examine and decide the claims to be submitted to you, under the Fourth article of the Treaty of Peace and Amity concluded at Ghent, on the 24th day of December 1814, between His Britannic Majesty and the United States of America, according to such evidence as shall be laid before you on the part of his said Britannic Majesty, and of the said United States respectively, So help me God." The certificate of the due administration of this oath, under the hand and seal of the justice, was filed with the proceedings of the commissioners.

Question as to British
Agent's Commission.

peared before the board his commission was contained in a letter from Lord Bathurst, His Majesty's principal secretary of state for the war and colonial department, dated at Downing street, July 12, 1815, and conveying "the commands of His Royal Highness" to proceed to St. Andrews as soon as he should hear of Mr. Barclay's arrival there, "in order to act as agent to the Commission." Mr. Holmes objected to this authority because it was not under any official seal, and because Lord Bathurst's signature was not followed by his official title. It was finally agreed that Mr. Chipman should be recognized as British agent, but that he should subsequently produce a formal commission. Such a commission was issued by the King on January 24, 1817, empowering both Ward Chipman and his son, who bore the same name, to act, jointly or severally, as agents or agent of Great Britain.' Both the American agent and the British agents, and the secretary to the commission, were sworn by Mr. Justice Mackay to the faithful performance of their duties.'

On the 24th of September the agents filed Claims of the their respective claims. That of the agent of Agents. the United States embraced all the islands in Passamaquoddy Bay and the island of Grand Menan as being within twenty leagues of the United States and included within their boundaries, and as not being excepted from those territorial limits by any provision of the treaty of peace. The British claim embraced the same islands on the ground that they were within the limits of Nova Scotia and therefore excepted by the treaty of peace from the territory of the United States.1

The agents agreed that, in case it should Agreements as to become expedient for either of them to take

Evidence.

the depositions of witnesses in the district of Passamaquoddy, reciprocal notices of the examination, together with copies of the interrogatories to be put, should be duly given. It was also agreed that the plan of the rivers Schoodiac and Magaguadavic, with their principal branches, including the Bay of Passamaquoddy and the adjacent coast and islands, compiled by order of the board under Article V. of the Jay Treaty by George Sproule, esq., surveyor-general of

1 MSS. Dept. of State.

New Brunswick, and a survey of Passamaquoddy Bay and its islands made in 1772, should be admitted as evidence before the commission.1

Arguments of the
Agents.

After the reception of the claims of the respective governments the commissioners adjourned till the 28th of May 1817, when it was agreed that they should meet at Boston to receive the arguments of the agents. Mr. Chipman, however, owing to an attack of gout and to adverse winds, did not appear till the 3d of June, and no business was transacted till the 9th. On that day Mr. Austin filed his memorial or argument and an appendix, all in manuscript, together with the depositions of certain persons taken pursuant to previous agreement. He then proceeded to read his memorial, arguing as he went along, and concluded the presentation of his case on the 10th of June.. On the 11th of June Mr. Chipman presented his memorial, documents, and depositions, and proceeded with his argument, which he completed on the same day."

Replies and Close of
Argument.

At their sixteenth meeting, which was held on the 13th of June, the commissioners, after making certain orders as to the payment of expenses, adjourned to meet again at Boston on the 25th of September, in order to afford the agents time to reply to each other's arguments. Owing to the fact that he had been elected to Congress, Mr. Holmes consented to this delay with reluctance. The board, however, reconvened at the appointed time and heard the agents' replies. Mr. Chipman opened on the

MSS. Dept. of State.

2 Mr. Barclay, in a letter to Lord Castlereagh of June 5, 1817, says: "The arguments on the part of both nations will I hope be read over by the 12th current, that on the part of the United States is unnecessarily diffuse; after which the Agents will require some time to prepare replies each to the others arguments, so that a short adjournment will probably take place. Mr. Chipman has at my request introduced in his memorial the Arguments used by Comrs. Shirley and Milday in their negotiations at Paris in 1750 and the extract of the council minutes in 1763, although he is of opinion, in which I concur, that the claim on the part of His Majesty, must and will eventually rest on the Grant to Sir Wm. Alexander in 1621. I confess my principal inducement for incorporating in the present case, the Arguments used by the Commissioners at Paris in 1750, is founded more on the effect it may produce on the friendly Power to whom the case may be referred, in the event of the Commissioners not being able to agree in a decision, than on the Commissioners in the first Instance." (Rives's Correspondence of Thomas Barclay, 379.)

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