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time, from the circumstance, that as Lord Aberdeen would draw from it they embrace the subsiance of ob. is not explained, he may be permit. servations which he had the honour ted to remark, that it is not perceivto make to Lord Aberdeen in con. ed how this historical fact contri. ference, they will come with more butes more towards establishing a propriety from him than from the title in New-Brunswick than in the distinguished citizen to whom the state of Maine. interests of the United States at To use the words of a celebrated this important court are about to authority, “when a nation takes be confided, who, however superior possession of a distant country, and his advantages in other respects, settles a colony there, that country, must necessarily be unacquainted though separated from the princi. with what may have passed in per. pal establishment or mother coun. sonal interviews between his pre- try, naturally becomes a part of the decessors in office and his majesty's state, equally with its ancient pog. ministers.
sessions.” The second demand of the United From the principle here esta. States is considered in connexion blished, that the political condition with the remark incidentally intro. of the people or the mother coun. duced in the former note of the un. try, and of the colonies, during dersigned, “that New Brunswick their union, is the same, the infer. can adduce no claims by which the ence is unavoidable, that, when a jurisdiction derived from prescrip. division of the empire takes place, tion or first occupancy of the coun. the previous rights of the common try can be sustained.”
sovereign, on matters equally af. Without repeating here what has fecting both of the states, aecrue been said on a former occasion, as well to the one as to the other of respecting the inapplicability of a them. title founded on possession, even F rom the possession of the discould such a one be established, puted territory by his Britannic to the question in controversy, the majesty anterior to 1776, a title by undersigned will proceed briefly to prescription or first occupancy examine the grounds on which the might, therefore, with the same allegation taken from his note is propriety, be asserted for Massa. attempted to be controverted. The chusetts, of which the present state three reasons on which the dissent of Maine was then a component of his majesty's Secretary of State part, as for Nova Scotia, through is founded, will be examined in the which latter province the preten. order in which they are presented. sions of New Brunswick are de.
The first of them is, “ that, be. duced. fore the independence of the United On the second point, the under. States, not only the territory in dis. signed conceives it proper to state, pute, but the whole of the adjoin. that he cannot admit “that the ing province and state, was the United States rest their claim to the property of a common sovereign.” possession of the territory upon the To the truth of the statement, which treaty of 1783," in any other sense is indeed expressed in the words than that in which his Britannic of the undersigned, no exception is majesty founds, on the same treaty, taken; but as the inference which his claims to New Brunswick. By the instrument, in question, which, From the Declaration of Inde. besides being a treaty of peace, pendence in 1776, the claims of the was one of partition and bounda United States, in their national ries, the title of the United States character, to all the territory with. was strengthened and confirmed, in the limits of the former thirteen but it was not created. It had ex. colonies, are dated. Of the fact isted from the settlement of the of their being in possession of country. Where this treaty is ap. sovereignty, comprising, of course, plicable, it, equally with all other the rights of territorial jurisdiction, conventional agreements between no further proof can be required, nations, is of paramount authority, than that they exercised all its and many of its provisions are, highest prerogatives. Nor were from their nature, of a permanent these confined to the limits of their character; but its conclusion, though own country. Treaties of amity it created new claims to territory, and commerce, and of alliance, did not destroy any prior right of were made with France as early as the people of the United States that 1778, and similar arrangements was not expressly renounced by it. were entered into by the United
The title to the district in contro. States with other foreign powers, versy, as well as to all the territory before any settlement of boundary embraced in the original states, is was attempted to be defined by founded, independently of treaty, convention between the American on the rights which belonged to states and the adjacent provinces. that portion of his Britannic ma. The terms, as well of the provi. jesty's subjects who settled in his sional article of 1782, as of the de. ancient colony, now embraced in finitive treaty of the succeeding the American union, and upon the year, may be cited in confirmation sovereignty maintained by the of the view here taken by the United States in their national cha. first article of both these instru. racter, since the 4th July, 1776. ments, “his Britannic majesty ac..
To the general rights of colonists knowledges the said United States, under the law of nations, allusion viz. : New Hampshire, Massachuhas already been made. To the setts Bay, &c. &c. &c. to be free, particular situation of the inhabi. sovereign, and independent states : tants of the country, now comprised that he treats with them as such ; in the United States, it is therefore and for himself, his heirs and suc. not necessary further to refer, than cessors, relinquishes all claims to merely to recall to the recollection the government, propriety, and of Lord Aberdeen, that they were territorial rights of the same, and not a conquered people, but sub- every part thereof." jects of the king of Great Britain, This language is sufficiently dif. enjoying the same rights with Eng. ferent from that employed where it lishmen; and, although they ac. is intended to convey territory by knowledged the authority of a com. a grant in a treaty, to forbid the mon sovereign, the right of the par application of the rules in the cases liament of the mother country, in of cession to the renunciation of which they were unrepresented, to his claims made by his Britannic interfere in their internal concerns, majesty. was never acquiesced in.
If, by tracing the limits in the
treaty by which the boundaries of have been exclusively exercised the United States were attempted by Great Britain. to be defined, England ceded to It may be here proper to remark, them the territory on the one side that the delivery necessary to effect of the line, the possessions of Great a transfer of possession is necessaBritain on the other side must be rily dependent, as well upon the cir. considered as held under a cession cumstances under which property from the United States. On these is held, as upon the nature of that provinces, indeed, the independent property itself. states of America had more or less With respect to a town or for. pretensions at different times during tress, the delivery is made by cer. the war; and they were also en. tain distinct sensible acts. This is titled to prefer claims to a portion important in an established com. of them, founded on their being an munity, in order to prevent the in. acquisition from France at the time convenience which would result they formed an integral part of the from doubts arising as to the period empire.
when the transfer of authority took There is, however, nothing in a place, and a new set of duties and treaty of partition or boundaries obligations commenced. The same that conflicts with the idea of a per motives do not, however, exist with fect equality between the contract. regard to an uncultivated wilder. ing parties. For the purpose of ness, and with no propriety can the preventing all future disputes, the rules which govern in the one case avowed object of the 2d article of be applied to the other. the treaty of 1783, such conven. Without insisting in this part of tions are frequently entered into the argument that, from the posses. between two nations of the same sion of the "common sovereign," antiquity.
independent of that of the provin. As it is believed that the exposi. cial authorities, anterior to the re. tion which has been given is suffi. volution, no title in favor of New. cient to show that the character of Brunswick could be derived, which the right which the United States would not equally accrue to Maine, are entitled to advance under the it is sufficient to observe, that it is treaty of 1783, does not imply any admitted on all sides, that the first “admission of the previous title of settlements were formed within the Great Britain to the territory in last forty years, and that consequent. question,” considered distinct from ly, by the possession, at the con. that of Massachusetts, the under clusion of the treaty of 1783, to signed may now proceed to exa whichever party it legally belonged, mine the allegation made in the was only a constructive one. If third place by Lord Aberdeen, the preceding views are correct, the “that no actual delivery of the ter- constructive possession in question ritory into the possession of the was in the United States long before United States has hitherto taken the date of the treaty, and no further place," and the further assertion, acts were or could have been requi. that, since the treaty of 1783, until red to complete any title that might the recent attempts of the state of then have been confirmed to the Maine, the rights of sovereignty American union. But had any ceremonies been necessary, as. Conceiving that sufficient has suredly the solemn one of making been said to prove that the Amerithe treaty would have been suffi. cans, supposing them to have a cient ; and looking to the fact that claim of right, either had the con. the district was then wholly unin structive possession at the period habited, it is difficult to conjecture of the ratification of the treaty of what other formal surrender could 1783, or that every transfer was have been conveniently devised. made of which the subject matter
It is also to be noticed in discus. is susceptible, it only remains, on sing this point, that the treaty of this head, to speak of the posses. 1783, which is long prior in date to sion subsequent to the peace of the present federal constitution, was 1783. not made with the national govern. From the nature of things, a ment exclusively, but, as appears by title founded on “immemorial pre. the article already cited, the states scription" cannot exist among the were recognised by it as distinct, descendants of Europeans esta. independent communities. When blished in America ; but as it is it is borne in mind that they are all implied even in a title by “ordi. enumerated by their ancient colo. nary prescription,” that “ the pro. nial names, and that “the northwest prietor cannot allege an invinci. angle of Nova Scotia" is also intro. ble ignorance ; that he cannot jus, duced as one of the points of the tify his silence by lawful and solid boundary, it is, without other corro. reasons; and that he has neglected borating considerations, sufficient. his right, or kept silence during a ly obvious that the former bounda considerable number of years," it ries between Massachusetts and would seem that while the officers Nova Scotia were intended to be of the two governments were ac. retained. Under these circum. tually employed in ascertaining the stances, it is not immaterial that boundary, no new prescriptive title Nova Scotia (including, of course, could accrue.. the territory in dispute, if it belongs Without, therefore, noticing any to that province,) was, by a charter establishment founded during the of William and Mary, incorporated period that the business of survey. in the colony of Massachusetts bay. ing and marking out the boundary By what other mode of transfer, it line was in actual progress, it may may be asked, than that adopted in be well to consider for a moment the case of the U. States, was that the character of the settlement ancient possession of Massachusetts through which the British claim of divested, either in favour of the possession is derived. separate provincial government af. The first inhabitants near the terwards established there, or of the Madawaska river were, as was for. French to whom it was restored in merly stated, French Acadians, or, 1697 ? If no actual delivery of the in the words of Lord Aberdeen, uncultivated lands was made on "descendants of the original French these occasions, according to the colonists of New-Brunswick ;' but reasoning of lord Aberdeen, the as this people had, from the period former constructive possession of of their subjugation by the joint Massachusetts remain at this day in arms of England and America, to full force.
the formation of their settlement, .
uniformly resisted the authority of render unnecessary the introduc. their conquerors, it is not apparent tion of principles on which there how they are to be considered was danger that the two govern. “ British subjects.” The claim ments might not agree, to begin the which either Maine or New-Bruns. deductions of the rights of the powwick has on their obedience is only ers from the treaty of partition, by one founded on local allegiance; which a separation of their domi. and the existence of this right can. nions was affected. not be established in behalf of either This method seemed also the party, except by an assumption of most expedient, as so far as the the point in controversy. It can, treaty was applicable, it, from its therefore, hardly be seriously con. nature, precluded all reference to tended that such a settlement, aided pre-existing titles, which became by the recent attempts of New. merged in it; and it was believed Brunswick to introduce its autho. that the ground which it occupied rity by enrolling the militia, and covered the whole matter in contro. serving process along the frontier, versy. The undersigned felt that affords evidence of a possession as he might then, without entering at against claimants under a title con. all into the facts respecting the firmed by treaty, not only of the settlement of the country, have land actually occupied by the indi. contented himself with the remark, viduals in question, but of an extent that “considering the grounds on of country embracing several mil. which the claims of the United lions of acres.
States are founded, it is not per. The undersigned has already ceived how arguments, drawn disavowed for his government, any either from the first occupancy, or knowledge of, much less acquies immemorial possession, can be cense in, these irregular intrusions made to bear on the principal subon the soil; and to avoid repeti. ject in discussion between the two tion, he also refers to his former countries, or how they can affect note for an enumeration of the acts the question of temporary jurisdic. of sovereignty exercised by the tion." American governments. ***
The course of reasoning, how. The objections offered to his al. ever, which Lord Aberdeen has legation, that New.Brunswick adopted, does not now leave the un. can adduce no claims by which a dersigned at liberty to omit the jurisdiction derived from prescrip. preceding exposition; and he trusts tion or first occupancy of the coun. that he has shown that there is no try can be established,” have now room for the application of the rule been met ; and in maintaining a of law cited by the British secretary position, from the attempt to con. of state, viz. “ that where a doubt trovert which Lord Aberdeen has exists, the party who has once drawn important inferences, the clearly had a right, and who has undersigned has treated somewhat retained actual possession, shall at length a topic, which, in his pre. continue to hold it until the question vious communication, was only at issue may be decided.” incidentally noticed. He then con. It is a sufficient reply to the infe. ceived that it would prevent pro. rence deduced from the silence of tracted discussion, and perhaps the treaty of Ghent, and of pre