Ashburton Treaty and Prior Negotiations

In considering any portion of the boundaries of Canada between the Atlantic and the Pacific, it is necessary to, first, consider what I have elsewhere called the great date-line in Canada's territorial history, namely, The Treaty of Paris, 1783, or, more correctly, the preliminary Treaty of Peace signed in November, * 1782. The negotiations for this treaty were conducted on behalf of Great Britain by Richard Oswald, assisted, later, by Henry Strachey and, on behalf of the Thirteen Colonies, by Franklin, Jay and Adams. Lord Shelburne has been severely criticised for entrusting the negotiations to Oswald, who is described by Lord Edmond Fitzmaurice, Shelburne's biographer, as follows:--"Nobody could, in any case, have been more unfit both by character and habits for engaging in a diplomatic intrigue than Oswald, whose simplicity of mind and straightforwardness of character struck all who knew him."

The question that one naturally asks is:--Why was this simpleminded person selected to carry on negotiations with not one but three of the ablest men that the revolting Colonies could produce? To answer this question involves a study of the conditions existing at the commencement of the negotiations, Shelburne's character and record and Oswald's instructions. Summing them up briefly, a consideration of these points shows that Great Britain was fighting the rebellious colonists in America, and France, Spain and Holland, in Europe. She was also facing an armed neutrality that practically included the remainder of Europe. The National Debt had risen to what was, at that time, an appalling figure--the people of those days being imbued with the now antiquated idea that a debt was a thing that should be paid off-and as the Debt had risen, Britain's credit had steadily declined; in America, with the exception of New York, Charleston, and a few other ports, the whole mainland of the Thirteen Colonies was lost; West Florida, Bahamas, Minorca, Granada, St. Vincent and other West Inca islands had been captured, though these losses were partially offset by successes in India. Repeatedly, down to July, 1782, Shelburne had asserted that he would never concede independence to the colonists, but in that month he became convinced that the breach between the Colonies and the Mother-Country was too wide and too deep to be bridged by anything short of the concession of independence.

The Count de Vergennes, French Minister of Foreign Affairs, had only gone to war to humiliate England, not for the sake of American independence, and was desirous of framing the peace on such conditions as would leave England, Spain and the United States in America to balance each other and so make France paramount. He proposed to confine the United States to the country between the Alleghanies and the Atlantic, leaving to England the country north of the Ohio and east of the Mississippi. Having decided to negotiate a separate peace with the colonists, Shelburne sent Oswald as negotiator and undoubtedly selected him as being the person most likely by his simplicity and straightforwardness to convince the American negotiators of his good faith. After many difficulties and much negotiation, the American negotiators-who were neither simple nor straightforward-finally became convinced that Shelburne was acting in perfect good faith, and signed the preliminary Treaty of Peace, November 30th, 1782.

In the follo ring January, the definite Treaty of Peace was signed at Versailles. The preamble of the Treaty reads as follows:--"And that all disputes which might arise in the future on the subject of boundaries of the said United States may be prevented, it is hereby agreed and declared that the following are and shall be their boundaries." Instead of preventing disputes this arrangement gave rise to disputes which on several occasions brought the two countries to the brink of war and were only ended by the Ashburton Treaty over a half century later. During the negotiations, the Americans first proposed the St. John River as the boundary, but, later, accepted the St. Croix River as being the western boundary of Nova Scotia which at that time included the present New Brunswick, and, therefore, the eastern boundary of the Colony of Massachusetts Bay.

The United States negotiators first proposed the St. John as the boundary, but finally agreed to accept the line between "Nova Scotia" and Massachusetts Bay. The portion of the boundary, later in dispute, was defined as follows:-"From the northwest angle of Nova Scotia, viz., that angle which is formed by a line drawn due north from the source of the Saint Croix River to the Highlands, along the said Highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the north-western-most head of the Connecticut River; thence down along the middle of that river to the forty-fifth degree of north latitude; from thence by a line due west on said latitude, until it strikes the River Iroquois, or Cataraquy." Reduced to its simplest form, the boundary followed the St. Croix River to its source and thence a due north line to the "northwest angle of Nova Scotia," the negotiators using the verbage of the boundaries of Nova Scotia as defined in the Commissions of Governors of Nova Scotia. In the later differences the crucial point round which the most acrimonious disputes raged was the position of this "northwest angle."

The first difference arose respecting the identity of the St. Croix, the United States claiming that it was a stream now known as the Magaquadavic, and Great Britain contending for the stream now known by that name, but then known as the Schoodic. Fortunately, the remains of buildings constructed in the time of Champlain, who gave the name it now bears, identified the western stream--the Schoodic--as the St. Croix of Champlain. In 1798, Commissioners appointed under the provisions of the Jay Treaty of 1794, decided that the eastern, and longer, branch was the "River truly intended under the name of the River St. Croix" and a monument marking the initial point of the due north line was planted at the source of this branch. The evidence given before the arbitrators contains some points of special interest which enable us to get a clearer and more correct judgment of the later disputes respecting the northwest angle. The American negotiators of the Treaty of 1783, Adams, Jay and Franklin, made statements respecting the maps used during the negotiations. They stated that a copy of Mitchell's map of 1755 "was before them and was frequently consulted for geographical information."

The next dispute arose respecting certain islands in the Bay of Fundy. The Treaty of 1783 awarded to the United States all islands within twenty leagues of their coasts except such "as now are, or heretofore have been, within the limits of the said Province of Nova Scotia." Differences arose respecting some of the islands in Passamaquoddy Bay. Article IV of the Treaty of Ghent, 1814, provided for the settlement of the question of title by the appointment of three Commissioners. The original grant of Nova Scotia to Sir William Alexander included all the islands within six leagues of a line from St. Mary Bay to the entrance of the St. Croix. In 1817, the Commissioners awarded to Great Britain all the islands in dispute with the exception of Moose Island and two small adjacent islands. Though, strictly speaking, within the limits of the Alexander grant, Moose Island was conceded to the United States because it "lay within less than half a mile of the American shores" and was settled by citizens of the United States.

Article V of the Treaty of Ghent also provided for the determination of the boundary line from the monument at the source of the St. Croix to the St. Lawrence. As already stated, the boundary line was defined as following a due north line from the source of the St. Croix, to the Highlands, "which divide the rivers that fall into the Atlantic Ocean from those that fall into the River St. Lawrence," the point of intersection being called the "northwest angle of Nova Scotia," thence following the "Highlands" to the north-westernmost head of the Connecticut River, thence down stream to the 45th parallel and thence westward along the parallel to the St. Lawrence.

It is necessary here to retrace our steps and endeavour to ascertain the position of the so-called "northwest angle of Nova Scotia." In 1621, James I granted to Sir William Alexander the whole of what is now Nova Scotia, New Brunswick and the portion of Quebec lying to the southeast of Quebec City, and south of the St. Lawrence. In 1763, subsequent to the proclamation erecting the Province of Quebec, a Commission as Governor of Nova Scotia was Issued to Montague Wilmot. It defined the western and northern boundaries of Nova Scotia as following a due north line from the source of the St. Croix to the southern boundary of Quebec and thence following said southern boundary to the western extremity of the Bay des Chaleurs. The Proclamation of 1763, erecting the Province of Quebec, defined the southern boundary as following from the 45th parallel "along the highest lands which divide the rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea; and also along the north coast of the Bay des Chaleurs." The Quebec Act of 1774 defined the southern boundary in practically the same terms, and when the negotiators of 1782 and 1783 inserted in the Treaty the words "northwest angle of Nova Scotia," they, undoubtedly, had in mind the point that had for nearly twenty years been shown on the maps and the point that the United States afterwards contended for.

It is extremely doubtful whether Great Britain could have raised a question respecting the identity of the "Highlands" had not Mr. James Sullivan, in 1802, addressed a letter to Mr. Madison, then United States Secretary of State, in which he stated that the water parting from the mouth of the St. Lawrence to the Chaudiere River was a vast morass and that, therefore, it would be impossible to define on the ground the line as described in the Treaty. Influenced by these representations, Mr. Madison instructed Rufus King, then Minister of the United States at London, to initiate negotiations for the appointment of a Commission to determine the boundary. Mr. Madison stated that as the "highlands had no definite existence," the Commissioners be authorized to substitute an arbitrary line for the highlands line of the Treaty.

The basis of this despatch was Sullivan's erroneous idea that the word "highlands" necessarily meant a mountainous tract of country whereas, from a geographical point of view, an absolute elevation above sea sufficient to constitute a water parting, fulfilled all the conditions, irrespective of its relative elevation as compared with the surrounding country. As Dr. Moore points out in his International Arbitrations, the letter of Mr. Sullivan and the instructions of Mr. Madison having been communicated to Congress and thus made a matter of public record, "conceded a point which it was never possible to regain."

In 1815, Commissioners were appointed under article V of the Treaty of Ghent, and in 1821 they reported to their respective Governments that they had been unable to arrive at an agreement. In the meantime, extensive surveys had been made in the disputed territory. A surprising discovery had been made, viz., that the line which had been surveyed in the preceding century and accepted as the 45th parallel, was, in places, over a mile to the northward of its true position. As a result, the two Rouse Point forts, which had cost over a million dollars, were on British territory. This was considered so important that it was, at first, kept a profound secret as a local uprising was feared. Under the provisions of Article V of the Treaty of Ghent, the failure of the Commissioners to render a decision necessitated a reference to "a friendly sovereign or state" as arbitrator. Before the Governments could agree on a reference, the authorities of New Brunswick and Maine were involved in controversy over their respective rights in the disputed area--New Brunswick lumbermen cutting timber and the Maine Government endeavouring to exercise jurisdiction over the Aroostook and Madawaska settlements. Eventually an arrangement was arrived at that no exercise of jurisdiction by either party would prejudice the rights of the other. Despite this arrangement, friction between the local authorities threatened, at times, to embroil the two countries in war.

In 1828, a Convention was ratified at London, which provided for a reference to the King of the Netherlands. The British statement maintained that, as the St. John fell into the Bay of Fundy, it was not included among the rivers that fell into the Atlantic; that the word "highlands" meant high and elevated lands of a generally mountainous character and that the first point at which the due north line intersected country of this description was the northwest angle of Nova Scotia; that within the disputed area Great Britain held the Seigniory of Madawaska, granted in 1683, by the French Government and that Great Britain, as the successors in title to Prance, had continuously exercised jurisdiction in the disputed territory since the cession of Canada in 1763.

In 1831, the Arbitrator rendered his award, which awarded Great Britain approximately one-third, 4,100 square miles, of the disputed territory; sustained Great Britain's claim to the area at the head of the Connecticut River and to the strip between the 45th parallel and the "Old Line" except that the United States should be left in possession of the Rouse-point forts. Mr. Preble, United States Minister at the Hague, though without instructions, immediately protested the Award. The British Government signified its acceptance, but authorized its Minister at Washington to intimate privately that it would be willing to enter into negotiations for a line that would be mutually more acceptable. President Jackson, who was inclined to accept the Award, afterwards regretted that he had not done so.

Several propositions for a division of the territory were made by each of the Powers, but were rejected. In the meantime, disputes respecting jurisdiction caused both Governments great anxiety. Arrests were made by the authorities of New Brunswick and of Maine, and, finally, in 1838, what is known as the "Aroostook war" broke out. A Maine land agent sent to arrest British subjects who were cutting timber on the Aroostook, was arrested with his posse. Maine raised an armed force, erected fortifications and appropriated $800,000 for military defence. Congress authorized the President to call out the militia and appropriated $10,000,000. General Scott was despatched from Washington, as a mediator, and arranged a modus vivendi on the basis of occupation by New Brunswick of the Madawaska settlements and by Maine of the country south of the St. John.

In 1841, Mr. Webster became Secretary of State. He intimated to the British Minister that he was willing to attempt a settlement and, in the following year, Lord Ashburton was sent out with full powers to settle the boundary. Maine and Massachusetts sent Commissioners to Washington to represent their respective states, but their unyielding attitude forced Mr. Webster to abandon written communications, and hold personal conferences with Lord Ashburton. In a few days, he was in a position to communicate to the Maine and Massachusetts Commissioners, the terms that Lord Ashburton was prepared to concede. Under this agreement, later known as the Ashburton Treaty, Great Britain received 5,000 miles--5-12 of the disputed territory, and 900 square miles more than were awarded by the King of the Netherlands. She surrendered a small area of 36 square miles near the source of the Connecticut and the narrow strip along the northern boundary of New York. To compensate the two states affected, the Government of the United States agreed to pay them $300,000 in equal moieties.

When the Treaty came before the Senate for ratification, Mr. Webster produced the so-called "Red Line" map as proof that the United States was getting more than it was entitled to. In 1842, an American, named Sparks, had discovered among the archives of the French Department of Foreign Affairs, a letter from Franklin to the Count de Vergennes stating that he was returning his map after having marked the limits of the United States "with a strong red line." As there was no map attached to the letter, he made a search among the 60,000 maps in the archives and found one map of North America with a red line on it, apparently indicating the boundaries of the United States. He forwarded the map to Mr. Webster who instructed Mr. Everett to "forbear to press the search in England or elsewhere." As the map showed a line which more than favoured the British claims it was produced by Webster to prove that the Treaty awarded to the United States more than she was entitled to and to thus induce the Maine Commisioners to consent to the ratification of the Treaty. Later, when the injunction of secrecy in the debates was removed, Webster was charged with sharp practice and with having over-reached Lord Ashburton. He replied that he did not think it a very urgent duty on his part to go to Lord Ashburton and say that a doubtful bit of evidence has been found in Paris which prejudiced the claim of the United States.

The best authorities are of the opinion that it is more than doubtful that the map bore any relation to the negotiations of 1782 and 1783, particularly as Franklin's letter does not contain any reference or note by the Record-Keeper respecting an accompanying map. Winsor, in his Narrative and Critical History of America, states that it is the same line as is shown on Palairet's map of 1759 with the note: "The Red Line . . . shows another claim of the French"--evidently referring to a French claim respecting the boundary of Acadia.

In addition, it is inconceivable that a man of Franklin's great ability, one who knew that the northern boundary of Nova Scotia and the southern boundary of Quebec had been shown on the maps for 20 years exactly where the United States later on claimed it should be, could ever have drawn as the boundary, a line that in places was over 100 miles south of the line as shown on these maps; in addition, as already stated, they had before them a copy of the Mitchell map which distinctly shows the Western boundary of Nova Scotia, though it carries it through to the St. Lawrence. But there was another "Red Line map." Fitzmaurice, in his Life o f the Earl o f Shelburne states that there is in the British Museum, a map from the private library of King George III, which shows by a broad red line, the boundary as claimed by the United States with a note "Boundary as described by Mr. Oswald." Winsor says that the note is in the King's own hand and that: "If this map was not known to the British Government at the time of the mission of Lord Ashburton, there was a convenient ignorance enjoyed by the heads of the administration which was not shared by the under officers, for it was well known, as Lord Broughen acknowledged, in Lord Melbourne's time when it was removed from the British Museum to the Foreign Office, and persons and traditions are easily transmissible in such offices. Ashburton protested that he was kept in ignorance of it and Peel and Aberdeen professed no knowledge of it to Mr. Everett till after the Treaty was signed. When the Treaty was assailed in Parliament, the Ministry of Peel brought this map forward to offset the clamour against the Treaty.

There is no doubt that: (1) The map is in the British Museum and that, ignoring the geographical errors, it shows the line substantially in acordance with the claims of the United States: that there are notes at intervals on the line of "Boundary as described by Mr. Oswald": that it came from the private library of King George III, but that it is not the copy used in the negotiations between Oswald and the Americans. As against the wording of the Treaty, however, Great Britain had the best of all claims, viz.: "effective occupation" and it is of interest to note that; though the King of the Netherlands in his Award, expressly disclaims basing it on occupation, the only reasonable explanation of his Award is to assume that he did base it on that principle.

In the area awarded to her by the Ashburton Treaty, France, and later, Great Britain, had experienced jurisdiction and administered justice. Eighty years prior to the cession of Canada, the French Government had granted the Seigniory of Madawaska and the territory was traversed by the highway from St. John to Quebec. To quote the late Lord Salisbury: "Whatever the primary origin of his rights, the national owner, like the individual owner, relies usually on effective control by himself or through his predecessor in title for a sufficient length of time." In the portion awarded to the United States, she likewise, had acquired a title by virtue of possession. That Lord Ashburton was able to make so favourable a settlement was due largely to the alarm of the United States Government, lest hostilities should be precipitated by a clash between the local authorities 'and, doubtless to a certain extent owing to Webster's anxiety lest the British should become aware of the existence of his "Red Line" map.