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Flef of Madawas It is equally notorious, and not to be denied, that not the slightest respect was paid ka
by Great Britain to the claim of France, over that country. The principles adopted in that respect are clearly expressed in the Letters Patent of James I., dated 3d November, 1620, to the Council at Plymouth, (commonly known by the name of the New England Patent,) and in the Charter of the Colony of Massachusetts’ Bay, granted on the 4th March, 1628, by Charles I. (8)
The Grant in the New England Patent, is for all that part of America, lying and being in breadth from forty degrees of northerly latitude, from the equinoctial line to the forty-eighth degree of the said northerly latitude, inclusively, and in length of and within all the breadth aforesaid, throughout all the main lands from sea to sea."
And the exception, as to the claims of other nations, is as follows, viz: “Provided always, that the said lands, islands, or any the premises by the said Letters Patent intended or meant to be granted, were not then actually possessed or irhabited by any other Christian Prince or State."
The same exception, and in reference to the same year, was inserted in the Charter of the Colony of Massachusetts, dated 1628, in the following words, viz: “ Provided always, that if the said lands.
intended and meant to be granted, were, at the time of granting of the said former letters patent, dated the third day of November, in the 18th year of the reign of his late Majesty King James I., actually possessed or inhabited by any other Christian Prince or State .
that then the said grant of our said royal grandfather should not extend to any such parts or parcels thereof so formerly inhabited.”
The boundaries of the grants to Sir William Alexander, in 1621, and to the Duke of York, in 1667, and of the Charter of Massachusetts' Bay, in 1691, extend to the Gulf and River St. Lawrence, and to the main sea northward and eastward. In Mitchell's Map, published in 1755, with the countenance of the Board of Trade, Nova Scotia and New England are both distinctly designated, and made to extend to the River St. Lawrence. Under the last designation are included the Old Province of Maine, according to its ancient boundaries, and the Province of Sagadahock, (Duke of York's Grant,) lying between Nova Scotia and Maine, and bounded on the North by the said River St. Lawrence.
It is therefore evident, that at no time were any territories excepted by Great Britain from the grants issued under her authority, but such as had been actually occupied and inhabited by some other European Power, prior to the year 1620, of such as might be recognised by treaty stipulations to belong to another nation; and that the chartered boundaries of Massachusetts' Bay, at the time of the cession of Canada to Great Britain, extended, without any reservation, to the banks of the River St. Lawrence.
The soundness of those principles, and the justice of the British claim to that extent, though they would be contested in a discussion where France was a party, cannot be called in question between the United States and Great Britain.
Admitting the claim of France to that part of the country to have been founded in justice, and the Fief of Madawaska to have been a possession unquestionably Canadian, from the date of the Grant to the final cession of Canada to Great Britain, the question whether that concession, and the presumed right of France to the territory on the River St. John, affected the chartered boundaries of Massachusetts’ Bay, is altogether irrelevant to the point at issue between the two Powers.
After the cession of Canada by France, Great Britain had the undoubted right, in erecting new Governments out of that Province, to alter its boundaries, and to annex to her ancient colonies such parts as she might think proper, of the former acknowledged dominions of France. That this did actually take place, is proved by the order
(s) Both quoted in the Charter of the Province of Massachusetts' Bay, of the year 1691. Written Evidence, No. 13.
in Council, of August, 1768, in which, after having confirmed the line of division along Fief of Madawas the 45th degree of North latitude, between the Provinces of New York and Quebec, it is provided “that nothing herein before contained shall extend to affect the properties of His Majesty's new subjects, having possession under proper titles, on those parts of the lands on the South side of this line the dominion of which was not disputed on the part of the Crown of Great Britain;" and provision is also made in favor of those new subjects who had obtained concessions and made actual settlements on lands disputed by the Crown. (SS)
It is therefore demonstrated, that the fact of a grant of land of Canadian origin being found in any place whatever, (South of the 45th degree of North latitude, or on the River St. John,) does not prove that it ever lay, or lies, within the boundaries of the Province of Quebec, (now Lower Canada,) as prescribed by Great Britain after the cession of Canada by France.
The British argument, then, rests exclusively on the assertion, that this grant of land has, ever since the Proclamation of 1763, constantly been subject to the jurisdiction, and been uninteruptedly held, of the British government of Lower Canada or Quebec.
The fief of Madawaska was held of the French government by a feudal tenure; and it appears, accordingly, that whilst France held possession of Canada, and as late as the year 1756, the various acts pertaining to that tenure, such as acts of fealty and homage, statement of the contents and description of the land, (Aveu el Dénombrement) and payment of the fine of alienation on mutation of property, were duly performed by the French Grantees, who resided in Canada on the waters of the River St. Lawrence. (C)
Not a single act of that nature, without excepting the payment of the reserved fine on each alienation of the property, appears to have been performed in relation to the government of Canada, by any of the British purchasers of the grant, from the cession of that Province to Great Britain, to the present time.
Mr. Bouchette states expressly, that "By the ancient custom of Canada, lands were held immediately from the King, en fief, or en roture, on condition of rendering fealty and homage on accession to the seignorial property; and in the event of a transfer thereof, by sale or otherwise, except in hereditary succession, it was subject to the payment of a quint, or the fifth part of the whole purchase money, and which, if paid by the purchaser immediately, entitled him to the rabat, or a reduction of two-thirds of the quinte This custom still prevails." (u) And he also mentions the fact, that the Dames Religieuses of the General Hospital of Quebec did perform fealty and homage in the year 1791, for a fief situated on the River St. Lawrence, within the boundaries of the British Province of Canada. (v)
As the tenure remains unchanged, the omission of performing the duties attached to it affords a conclusive proof, that the fief has not, since the cession to Great Britain, been considered as being held from Canada. It is not included in the list of the fiefs conceded by the French Government, and still considered as being within the boundaries of the British Province, which is annexed to the Surveyor General's Topographical Description. (w) Nor has any evidence been adduced of a single act of jurisdiction, by the Government of the Province of Quebec, (or Lower Canada,) over that fief, or having any reference to it. No other evidence has been produced, of a date subsequent to the year 1762, in any way relating to that concession, than the various leases and deeds of sale of the property.
Those mutations of property between British subjects afford in themselves no evidence whatever of jurisdiction. The only semblance of proof arises from those in
(se) Written Evidence, No. 26. Appendix, page 213.
Fief of Madawas- struments having been recorded in the Province of Quebec or Canada ; viz: four
leases, dated respectively in the years 1768, -74, -82, -86, in what is called the Riegister's Office of Quebec, and the deeds of sale, bearing date, July 1763 (prior to the King's Proclamation of October, 1763,) and June and August, 1802, (subsequent to the treaty of 1783,) in the offices of public notaries of the same city.
It was quite natural, that the lessees and grantees, all of them inhabitants of Canada, should, in order to preserve the evidence of their title deeds, have had them recorded by those inferior officers, neither of whom was competent judge of what were the limits of the Province. But there was a sufficient reason why those several instruments should have been thus recorded. Every one, whether lease or deed of sale, included not only the fief of Madawaska, but also, other much more valuable lands, situate within the acknowledged boundaries of the British Province of Quebec.
The deed of July, 1763, from the last French owner to General Murray, includes, 1st, the fief of Madawaska, on the river of the same name, situate near the River St. John, together with the Lake Temiscouata adjacent thereto, (y joignant,) containing three leagues in front, on each side of the river of the same name, by two leagues in depth, not being able to declare positively the extent of the Lake Temiscouata: 2dly, the seigneurie of the River du Loup, situate on the South side of the River St. Lawrence, containing seven leagues and half, or thereabout, in front, on an average depth of more than two leagues. (x)
The deed of August, 1802, from H. Caldwell to A. Fraser, the present claimant, as well as the three leases to Malcolm Fraser, are for the same property, and six thousand acres in addition, situate on the waters of the River St. Lawrence, behind the seigneurie of River du Loup, which had been granted in 1766 to Richard Murray by the British government of Quebec. The whole is sold to Fraser for £1766 sterling.
The lease of 1774, and the deed of sale from the executors of General Murray to H. Caldwell, dated June 1802, embrace, in addition to the above mentioned properties, the seigneurie of Lauzon on River Chaudiere, that of Foucault on Lake Champlain, the fief of St. Foi at Sillery, the mansion-house and lands of St. Bruit, a house in the city of Quebec, &c.; the whole being sold for £10,000 sterling. (y)
It is also stated, in the document No. 21, British Evidence, that the deposition of George Allsopp, (dated 7th September, 1804,) the Register by whom was recorded the lease of the year 1774, from General Murray to H. Caldwell, is taken at the request of Henry Caldwell, Esq., to be used in the causes to be heard and tried before the honorable the Circuit Court of the United States next to be holden at Rutland, within and for the District of Vermont, on the 3d day of October next ensuing, in which causes Henry Caldwell, Esq. is Plaintiff:” And we find the explanation of this apparent anomaly in Bouchette's Topographical Description, (z) where, speaking of the seigneurie of Foucault, he informs us that “The line of boundary between Lower Canada and the United States (the 45th parallel of North latitude) runs through this seigniory, whereby great part of it is placed within the State of Vermont.”
Thus we have it in proof, 1st, that in prescribing the Southern boundary of the British Province of Quebec, (now Lower Canada,) no regard was paid to the situation of the ancient French grants, and whether they fell on one side or the other of the line-2dly, that French concessions, known to be without the acknowledged boundaries of that province, were nevertheless admitted to be recorded by the officers holding their offices at Quebec.
(2) Written Evidence, No. 58, and British Evidence, No. 20. For the extent of the fief of Madavas. ka, see Note (A) at the end of this statement.
(y) Written Evidence, No. 58, and British Evidence, 21 to 25.
Even had this not been the case, it would have been preposterous to say, that acts Fief of Madawasof an inferior officer of the city of Quebec could have been known to the framers of the treaty of 1783, have had any influence on their proceedings, or can in any degree affect the boundary established, either by the public acts of Great Britain, or by the treaty of 1783.
Yet, it is on the fact alone of the leases and deeds of sale having been recorded at Quebec, in the manner and under the circumstances which have now been explained; on no other evidence whatever, and in the face of contradictory evidence; that the structure has been erected, in the British Statement, of an extensive Possession, incontestably Canadian, held by virtue of rights derived to Great Britain, far within the pretended boundary of the Province of Massachusetts' Bay, which has always formed an integral portion of Canada, and which, preserving its individuality under the original grant, has constantly been subject to the jurisdiction of Canada.
Without pretending to understand precisely the meaning of some of the concluding remarks of the Statement, on that branch of the subject, it may be observed, that after having assumed that the Fief of Madawaska was within the Boundaries of the British Province of Canada, it is inferred, that “assuming this to be the case, it is manifest that the American line must, at the point towards the source of the Madawaska, experience, an absolute chasm; a complete interception, by the interposition of Canada."
“ But how (it is added) would such a line fulfil the conditions of the treaty? It would certainly, in that case, neither run along highlands, nor would it divide rivers falling into the St. Lawrence from rivers falling into the Atlantic; since the upper part of the Madawaska would undoubtedly be on the same line with all the rivers which fall into the St. Lawrence."
No better reason can certainly be assigned, than this last quotation, to shew that the Fief of Madawaska cannot, in conformity either with the treaty of 1783, or the proclamation of 1763, be within the Boundaries of Canada.
If those remarks were intended, (though still excluding the River St. John,) as the view taken by the British Government, of the conditions which necessarily attach to the Boundary line, in order to fulfil the conditions of the treaty; it is tantamount to an abandonment of the case, since the line claimed by Great Britain does not certainly, through the greater part of its extent, divide the rivers falling into the River St. Lawrence from any other rivers whatever.
If intended only, as that view of the subject which is taken by the United States, its correctness cannot be impeached on any other ground, than that to which Great Britain is always compelled ultimately to resort; namely, denying that it is necessary, in order to fulfil the conditions of the treaty, that the line should, from the Northwest angle of Nova Scotia to the head of the Connecticut River, divide rivers falling into the St. Lawrence from Rivers falling into the Atlantic.
The other alleged acts of jurisdiction by the Government of Canada, over the contested territory, are, with a single exception, of a date posterior to the treaty of 1783, and will be examined in the section of this Statement, where a general view will be taken of the acts of both parties, in relation to that territory, since the year 1783.
The only act of a prior date, which has been adduced in evidence, consists of a Indian Grounds. notice from the Secretary's Office, dated 19th January, 1765, and inserted in the Quebec Gazette of the 24th of the same month.
This was founded on the petition of an Indian tribe, called Maricittes, complaining that the inhabitants of Canada hunted beaver, on lands belonging to them, which extended from the Great Falls of the River St. John to Temiscouata, a space of about twenty leagues, including the River du Loup, (a) and that of Madawaska, which emp
(a) This is a distinct river from that of the same name which falls into the River St. Lawrence.
Indian Grounds. ty themselves into the River St. John; where the French had at all times been forbid
den to hunt beaver, that privilege (cette chasse) having alwa s been reserved to the said Indians. And the notice is accordingly given that the privilege prayed for by the said Indians, (to wit: the renewal of the order forbidding the inhabitants of Canada to hunt on their grounds,) would be allowed and confirmed to them, unless just cause could be shewn to the contrary. (6)
When the question was to quiet Indians in the vicinity of his Provinre, a British Governor might have been justified in not strictly attending to Boundaries running across a country yet in their possession. But, in this instance, the Governor ofQuebec did not overstep the limits of his legitimate authority. The order, if it ever was issued, applied only to the white inhabitants of Canada, residing within the acknowledged Boundaries of his Province; and he had a right to forbid their hunting on Indian grounds, though situate beyond those Boundaries.
To argue from such an order, that the River St. John was within the limits of Canada, would be just a ra onal, as to insist that China is part of the dominions of Great Britain, because she forbids her subjects generally to trade to that country.
It may be further observed, that the protection of the Indians was one of the special objects of the Proclamation of 1763. Amongst other provisions to that effect, it is provided, that every person who may incline to trade with the said Indians, do take out a license for carrying on such trade, from the Governor or Commander in Chief of any of our colonies respectively, where such person shall reside.” Whence it clearly appears that the powers given to the Governors, in relation to Indian affairs, were to be exercised, with respect to white inhabitants, in reference to their place of residence, and not to that of the Indians.
Objections relative to the Gulf of St. Lawrence.
Gulf of St. Law
The arguments by which it has been shewn, that the framers of the treaty of 1783, had no intention to assign to each Power the whole of the rivers which have their mouth within their dominions respectively; and that the term “rivers which fall into the Atlantic Ocean," considered alone, embraces those which fall into the inlets of that Ocean, apply with equal force, to the Gulf of St. Lawrence and to the Bay of Fundy.
The facts, that the River Ristigouche empties itself into the Gulf of St. Lawrence through the Bay des Chaleurs, and that its mouth lies far East of the meridian of the source of the River St. Croix, are evidently irrelevant to any question at issue.
The mention, in another article of the treaty, of the Gulf of St. Lawrence by its specific name, affords another proof, that that inlet is always held to be a part of the Atlantic Ocean.
The provision alluded to is in the following words: “ that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind, on the Grand Bank, and on all the other Banks of Newfoundland; also in the Gulf of St. Lawrence, and at all other places in the Sea, where the inhabitants of both countries used at any time heretofore to fish.'
The Gulf of St. Lawrence is, in that clause, assimilated to the Banks of Newfoundland; both being declared to be places in the Sea; and what Sea was meant cannot be doubted, unless it should be denied that the Banks of Newfoundland are in the Atlantic Ocean.