Gambar halaman
PDF
ePub

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

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

2 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 Commission.

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 apdefined by actual measurement. His Majesty's Ministers could not have intended to take these Islands from the jurisdiction of Nova Scotia without 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.1

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

Agreements as to
Evidence.

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

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.2

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.)

26th of September and closed on the 29th; Mr. Austin opened on the following day and concluded on the 1st of October. But, in spite of the fact that their arguments and documents filled more than 2,000 folio pages, both the agents requested a further hearing and for that purpose asked for an adjournment till the following spring. It seems that neither the British commissioner nor the British agent thought a rejoinder necessary or desirable,' though Mr. Holmes had a somewhat contrary impression as to their inclination. Mr. Holmes understood Mr. Barclay to say that he had heard enough, but was unwilling to refuse a further hearing; and he was disposed to consider Mr. Barclay as "refusing, declining or omitting to act," if, after having declared that he had heard enough, he should still insist on affording an opportunity for further argument." It is probable that Mr. Barclay, perceiving Mr. Holmes's great anxiety to complete the business before the assembling of Congress, in which he considered that he could not take his seat without vacating his appointment as commissioner, was disposed to let this motive operate in favor of an agreement, and therefore did not himself betray any impatience, though, being doubtful "whether another commissioner would possess that candor and discrimination" which he had always observed in Mr. Holmes, he was desirous of concluding the affair with him. On the 8th of October, however, the commissioners determined that in their memorials and replies the agents had "done honor to themselves and justice to their respective Governments," and that it was "therefore inexpedient that they should be further heard." 4

Agreement of the
Commissioners.

by Mr. Barclay."

On the following day the commissioners reached an agreement. The steps by which it was brought about have been detailed

"In the discussion which took place between the Commis

1 Rives's Correspondence of Thomas Barclay, 389.

Mr. Holmes to Mr. Adams, Sec. of State, October 2, 1817, S. Ex. Doc. 97, 20 Cong. 2 sess. In this letter Mr. Holmes said there was no prospect that the commissioners would agree.

3 The Constitution of the United States, Article I. section 6, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

MSS. Dept. of State.

"Mr. Barclay to Lord Castlereagh, October 25, 1817, Rives's Correspondence of Thomas Barclay, 389.

« SebelumnyaLanjutkan »