the termination of the Southern, and the commencement of the Eastern boundary of the United States; and it also intended, that where the Eastern boundary passed through the waters which were navigable, that both nations should equally participate in the navigation. The Question then is, How is the boundary in the intermediate space between where the mouth of the St. Croix hath been decided to be, and the Bay of Fundy, to be established, most consistent with the Treaty? In answer to which it may be suggested, that the boundary should be a line, passing through one of the passages between the Bay of Fundy and the Bay of Passamaquady; that the west passage being unfit for the purpose, having a Bar across it, which is dry at low water, the next to it must be taken, and the line may be described-Beginning in the middle of the Channel of the River St. Croix, at its mouth; thence direct to the middle of the Channel between Point Pleasant and Deer Island; thence through the middle of the Channel between Deer Island on the East and North, and Moose Island and Campo Bello Island, on the West and South, and round the Eastern Point of Campo Bello Island, to the Bay of Fundy.

"October 25th, 1799. The Commissioners decided the Scudiac, and the northern Branch of it, to be the River intended in the Treaty under the name of the St. Croix, and that its mouth was at Joes point."

CHAPTER II.

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

Stipulation as to Islands in the Treaty of Peace.

By the second article of the treaty of peace 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.

The King-Hawkes

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

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 beilum, 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. hazardons to risk the peace on the question of the temporary possession of We thought it too 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.)