Quincy Aug. 8th, 1811.
When the conferences between the British and American ministers were first opened, or very soon afterwards, the former demanded the cession of the whole Province of Maine. They pretended that it was no part of the province of the Massachusetts bay, and therefore no part of the American confederacy, and consequently not included in their commission nor in ours—that the boundary between the United States and the British territory in America, must be Piscataqua river, &c.
This wild pretension was unexpected to us all, I believe. I am sure it was to me. I contented myself with observing, that the Province of Maine had been long incorporated by charter with the old colonies of Plymouth and Massachusetts bay—that they had all been under one government and administration for a century—that the Province of Maine had been in arms against the pretensions of the British ministry and parliament, as long and as ardently as any part of the Union—had contributed her full proportion both of men and money in the whole course of the war—and that the British commissioner might as well claim the town of Boston or the town of Plymouth, as the town of Falmouth, York or Wells; for all these had alike been represented in Congress from 1774 to the present day, and been equally or at least proportionally concerned in electing and maintaining delegates in that great counsel of the nation. My colleagues promptly and cordially supported me in all these observations, and the English gentlemen did not appear to possess any information to countervail them—But still insisted that they must have the rivers Penobscot and Kennebec within their dominion. From time to time after this, both in private conversations and in public conferences, the English gentlemen contended for Penobscot, Kennebec, and as far as Piscataqua river. There was so much said upon the subject that it began to be a topic of conversation at Versailles, and I was informed that some of the courtiers had received impressions favorable to the British claim. This induced me to carry to Versailles and show to the comte de Vergennes, as I have mentioned in the foregoing journal, the documents containing the authority of the governors Shirley, Pownal, Bernard and Hutchinson, in our favor, and directly in contradiction to the present pretensions of Mr. Oswald, Mr. Whiteford, Mr. Stratchy, &c. This precaution, which I took long before I produced any of these documents in our public conferences, silenced all the praters at Versailles, and we heard no more of British pretensions to Penobscot, countenanced at court. Messengers and couriers were continually passing and repassing between Paris and London, from the British ambassadors to the British ministry. One gentleman I have been informed crossed the channel eight or ten times upon these errands during the negotiation—And whenever a new courier arrived we were sure to hear some new proposition concerning the Province of Maine. Sometimes the English gentlemen appeared to soften down a little and to be willing to compromise with us, and to condescend to agree upon Kennebec River as the boundary, and at last they seemed to insinuate that for the sake of peace they might retreat as far as Penobscot—but Penobscot must at all events be theirs. We concluded from all these appearances, that they had instructions to insist upon this point; but we insisted upon the river St. Croix, which I construed to mean the river St. John’s, for St. John’s had as many holy crosses upon it as any other river in that region, and had as often been called St. Croix River.
One morning, I am not able to say of what day in November, but certainly many days after the commencement of conferences, the British minister introduced to us a special messenger from London as the oldest clerk in the board of trade and plantations, and a very respectable character. He was sent over by the British cabinet with huge volumes of the original records of the board of trade and plantations, which they would not trust to any other messenger, in order to support their incontestable claim to the Province of Maine. We all treated the gentleman and his records with respect. After the usual ceremonies and salutations were over, the gentleman produced his manuscripts, and pointed to the passages he relied on, and read them.
I said nothing at first, but I thought the British cabinet believed that Dr. Franklin was too much of a philosopher to have been very attentive to these ancient transactions, and that Mr. Adams and Mr. Jay were too young to know any thing about them—and therefore that they might by the venerable figure and imposing title of the most ancient clerk in the board of trade and plantations, and by the pompous appearance of enormous volumes of ancient records, be able to chicane us out of the Province of Maine, or at least to intimidate us into compromise for the River Kennebec, or at the worst for Penobscot.
When the aged stranger had read for some time in his aged volumes, I observed that I had at my apartments documents which I flattered myself would sufficiently explain and refute whatever might be contained in those records, which should be construed or alleged against our right to the Province of Maine, and requested that the deliberation might be postponed till I could produce my books and papers. This was agreed. Accordingly at the next meeting I produced my documents.
Here I hope I shall be indulged in a digression to shew what these documents were and how I became possessed of them.
When in October 1779, I received from congress my commissions and instructions to treat of peace and commerce with the ministers of his Britannic majesty, and my orders to embark for Europe, in order to be there ready to treat whenever negotiations for peace should be opened—I foresaw that there might be much difficulty and discussion in ascertaining the boundary between that part of Massachusetts called the Province of Maine and the British Province of Nova Scotia, and possibly of Canada. To prepare myself against this contingency, I procured the charters of Massachusetts, and a pretty thick quarto volume of the printed negotiations of Mr. Maitland and Gov. Shirley in the year 1754, in which many questions and perhaps all the questions relative to the subject, had been largely treated at Paris. I took some pains to procure another paper too, which though it could be no authority of itself, it would serve me as an index to all other authorities. Although the history of this paper will be considered another digression, it must be here inserted. In the autumn of the year one thousand seven hundred and seventy three, the two houses of the Legislature of Massachusetts appointed the Honorable James Bowdoin and John Adams, esq. a committee to prepare and report a statement of the title of the province to certain lands to which the legislature of New York had asserted a claim, and endeavored to support it, by a very learned work, elaborately drawn up by Mr. Duane, and adopted and printed by their authority. When the committee met, Mr. Bowdoin insisted that Mr. Adams should take upon himself the investigation and prepare the report, as he was pleased to say, because it lay more in the course of his studies and daily researches. I was very much pressed with business; Mr. Bowdoin had great leisure; Mr. Bowdoin had been fifteen years in the legislature, and having much more experience and weight, I excused myself and urged him to undertake it, promising to give him all the assistance in my power: but he refused, and at last with much reluctance I undertook it.
A much more considerable part of the winter, than I could well spare from my necessary engagements in other business, was spent in researches to prepare this report. I visited Dr. Mather and was kindly admitted to his library and the collections of his ancestors. I was admitted to a valuable collection of Mr. Moffat, who was very curious in amassing ancient records and pamphlets, particularly the journals ancient and modern of the Massachusetts legislature. I mounted up to the balcony of Dr. Sewall’s church, where were assembled a collection, which Mr. Prince, had devoted himself to make from the twentieth year of his age. The loss of this library of books and papers, in print and in manuscript, can never be sufficiently regretted. Such a treasure never existed any where else, and can never again be made. He had endeavored, and with great success, to collect every history, pamphlet, and paper which could throw light on the reformation, the rise and progress of the puritans and the persecutions which drove our ancestors over to this wild and unknown world.
From the materials collected from every quarter, I drew a report and presented it to Mr. Bowdoin, who after taking time to peruse it, was pleased to say it was an excellent report, that it wanted no amendment, and that he would present it to the House. Mr. Samuel Adams was then Clerk of the House. The Legislature were convened by Gov. Gage, at Salem, and whether the report was ever read to the House or not, I know not.—It was not printed in the Journal as all other Reports of that nature ever had been. Expecting to see it in print immediately, I had omitted to preserve a copy of it. This report now in 1779 I wanted to assist me in preparing documents for the negotiations for peace: but applying to Mr. Adams who had been clerk of the House, and was now Secretary of the State, he informed me that in the confusion at Salem, when they resolved on a Congress, and chose their delegates, he had mislaid it and could not find it. It was however afterwards found and delivered to the commissioners, who finally settled the dispute with the commissioners of N. York. I say it was found, because I have been informed by Governor Sullivan, Chief Justice Parsons, Mr. Dalton, and Mr. King, that they had it in my handwriting and that it enabled them to obtain from N. York the cession of the Genesee country. Where it is now, I know not; but it ought either to be returned to me or published, as I never had any compensation for it, though a grant had always been customary on such occasions, or even acknowledgment of it. This however is no mortification to me. Another consideration is infinitely more afflicting, the prudence of our State, in trifling with this immense interest, and selling a principality for a song. That territory would now build Hospitals, Universities, Botanical Gardens, or any other publick Institutions, without applying to individual subscribers, or laying any burden on the people.
As I could not obtain my Report in Manuscript or in print, I looked about to furnish myself with such other documents as I could find. I procured all the printed Journals of the Massachusetts Legislature, which contained any thing relative to our boundaries; and among the rest, the journals of the years, one thousand seven hundred and sixty two; one thousand seven hundred and sixty three; one thousand seven hundred and sixty four; one thousand seven hundred and sixty five; and one thousand seven hundred and sixty six.
In all these Journals it appeared that one Counsellor or Assistant, an inhabitant or Proprietor of Lands, within the territory lying between the River Sagadahock and Nova Scotia, was annually chosen by the two Houses of the Legislature of Massachusetts Bay; and this Sagadahock Counsellor had never been negatived by any Governor, nor was any disapprobation of his election, signified by the government in England. On the contrary the express approbation of the Governor, had been annually recorded.
It appeared in all these Journals that representatives from the towns in the counties of York, Cumberland, Lincoln, all within the Province of Maine, had been annually chosen, and several in the House, without any remonstrance from any Governor, or from the Government in England. In short the Legislature of Massachusetts Bay, had laid out Counties, incorporated towns, granted Lands, and regulated every thing from the date of the Charter, in the Province of Maine, as much as in the old Colony of Plymouth, or in the Counties of Worcester and Hampshire.
In this Journal of 1782, page 10 is a Message from Governor Bernard, to the Council and House of Representatives, reciting a resolution of the General Court on the 3d of April preceeding, in pursuance of which he had written to Lieutenant Governor Belcher, of Nova Scotia, proposing the appointment of Commissioners to survey the bay and River St. Croix, in order to fix the boundaries between the two Provinces. Recommending also, that Commissioners be directed to survey the harbour and river of St. Croix, from thence to prove the identity of the river St. Croix, which is the known boundary between the two Provinces: and all this for the express purpose of supporting your right to the country between the rivers Penobscot and St. Croix.
In page 78, of the same Journal of 1762 is the establishment of Fort Pownal at Penobscot: and the establishment of Fort Halifax and the store house at Cushnoe and the bay of their garrisons.
In page 92, is a message from Governor Bernard, proposing to visit the eastern parts of the province, to have a conference with the Indians at Penobscot and prepare them for a treaty of peace, &c.
In page 98, is an order of both Houses appointing a committee to draw up a full state of the right of the province to the lands eastward of river Kennebenk, and make report at the next session.
In page 101, is a message from Gov. Bernard, to both Houses, signifying his intention of visiting the garrisons at Fort Pownal, and Fort Halifax in person.
In page 105, voted that the garrison of Fort Halifax be augmented &c. also a plan of six townships laid out at Penobscot.
In page 105, establishment resolved at Halifax, 3 captains, 7 subalterns, 18 non-commissioned officers, 250 privates.
In the Journal of 1765, page 151 the plan of the six townships was allowed and the grant confirmed.
In page 154, a report concerning the province title to the eastern lands, accepted and ordered to be printed, passed in Council January 20, 1763.
In page 162, is a confirmation of the tracts of sundry townships, at the eastward, to the grantees, &c.
In page 189 is another confirmation of the plan of the six townships.
In page 196 report on the state of the title to the country between Kennebeck and St. Croix, accepted and transmitted to the agent Maudent, which vouchers.
In page 244, the expences of fixing the bounds of nine townships in the counties of York and Cumberland are allowed.
In page 244, the expences of fixing the bounds of nine townships in the counties of York and Cumberland are allowed.
In page 268, is an order that the report of the committee of both Houses relative to the boundaries between this government and Nova Scotia, which has passed the whole court in the present session, be printed at the end of the Journal of the House the current year.
In page 271, Resolved, that the sum of thirty pounds be granted for the Hon. Thomas Hutchinson, over and above the forty pounds granted in Sept. last, in full for his services done for and at the request of this Government. (This was for drawing the report on the title to the country between Kennebook and St. Croix.)
In page 217, is the form of the deeds given in the name of the Governor, Council, and House of Representatives of the province of Massachusetts Bay, in New England, in the great and General Court assembled, and signed by the Governor of all the townships of land granted, between the territory of Nova Scotia and the river Sagadahock, ever distinguished by the name of the territory of Sagadahock, granted expressly by the charter to the inhabitants of the province of the Massachusetts Bay.
In page 281, a township is granted to Joseph Fry, Esq. at Pigwakit, in the county of York. And a committee is appointed to repair to the province of Maine, and settle the boundary between the province of Maine and Newhampshire, and His Excellency is desired to acquaint the Commander in Chief of Newhampshire, with this proposal.
At the end of this volume is an appendix to the votes of the House of Representatives for the year 1762.
A brief state of the title of the province of Massachusetts Bay to the county between the rivers Kennebrook and St. Croix. This is the report of the committee mentioned in page 196, for drawing which Mr. Huchinson was rewarded by grant, recorded in page 271.
In this report, the title of the province, is traced, from step to step, from 1436, when the Cabot, first discovered the continent of North America, under Henry the VII, to the year 1763, and is supported by the invaluable authorities of things, privy Councillors, Attorneys and Solicitors General in England, and by all the Governors, especially Shirley, Pownal and Bernard.
(A few lines of the manuscript is here lost.)
He read on with great gravity and solemnity, the records of his projects, schemes, petitions and intrigues, to obtain a gram of principality in that eastern country. When he had read as long as he pleased and as much abuse of the Massachusetts as he found recorded in the representatives of Colonel Coram, as he called him; I presented him with the colume of Maitland and Shirley, the charter of Massachusetts, and the journals of the house of the year 1762, 3, 4, 5, and 6, referred him in particular passages, and began to read on my part in page nine of the report of the brief state of the title of the province of Massachusetts Bay to the country between the rivers Kennebec and St. Croix, in these words—
"About the year 1718, the famous prospector Captain Coram, formed a scheme for obtaining from the crown a grant of the lands between Nova Scotia and the Province of Maine, and a petition was preferred signed by William Armstrong and diverse others, praying such grant might be made to them. This petition being referred to the then solicitor-general, part of his report was as follows—The king cannot make a grant of these lands, the crown having already divested itself of its right. These petitioners, not contented with this report, framed a long petition to the king, reflecting on the province of Massachusetts Bay, and on the solicitor general, and praying a hearing before the lords of the committee which was granted. After a reference to the board of trade, and a report made, the lords came to an agreement or resolution, viz—That the lands between Kennebeck and Penobscot shall be confirmed to their respective proprietors, and where there are no proprietors shall be disposed of by the government of the Massachusetts Bay, provided the said government do give up their pretensions to the lands between Penobscot and St Croix. And in regard the board of trade have given their opinion against incorporating the aforesaid tract with the Massachusetts, as being a charter government, it is left to his Majesty to erect the whole territory between St. Croix and Kennebeck into a distinct and separate province, if his majesty shall think fit. It was further ordered that the agent have time to notify the province of this resolution of the Board, that they may report their answer, and that till then, all proceedings be suspended.
“The agent, Mr. Dummer, April 10th, 1719, wrote to the general court of the province, desiring to know whether they would accept the King’s confirmation of the land between Kennebeck and Penobscot, on the terms proposed; but the general court chose rather to retain their right to make conditional grants of the whole tract, than to give up so great a part of the country for the sake of the power of making absolute grants of a part only. Upon this refusal, the solicitations seem to have ceased, and the lords of the committee took no further order thereon. In proof of this, agent Dummer’s letters and the records of the Board of trade, are quoted.
“In 1729, David Dunbar esq, came over from England and took Possession of the Fort at Pemaquid, and claimed jurisdiction over the country at St. Croix, by virtue of authority from, and in behalf of the crown. The proprietors alarmed at this invasion of their property, employed and empowered Samuel Waldo esq. to petition the King that the said Dunbar might be removed and that they might be quieted in their lawful possessions. Sir Bybye Lake, a proprietor in the Eastern country, joined with Mr. Waldo in the solicitation, and the petitions being refered to the board of trade, they called the province agent before them, and a state of the case, was ordered to be drawn up, setting forth the province’s claim, how little expence the province had been at in defending and improving this country, the conquest made in 1696 by the French, and the reconquest in 1710, and the lords of trade refered this state, with the two following queries, subjoined to the consideration of the attorney and solicitor general, viz.
“1st. Whether the Inhabitants of the Massachusetts Bay, if they ever had any right to the government of the tract of land lying between St. Croix, and Kennebec have not by their neglect and even refusal to defend and take care of, and improve the same, forfeited their said right to the government, and what right they had under their charter, and now have to the lands. 2d. Whether, the said tracts being conquered by the French and afterwards reconquered by General Nicholson, in the late Queens time, and yielded up by France to Great Britain, by the treaty of Utrecht, that part of the charter relating thereto became vacated, and whether the government of that tract and the lands thereof are not absolutely reverted in the crown, and whether the crown has not thereby sufficient power to appoint governors and assign lands to such families as shall be desirous to settle there.
“The attorney and solicitor general heard council on behalf of the crown and on behalf of the province and proprietors, and on the 11th August 1731 made report.
“That upon considering the said case and queries, and the evidence laid before them, and what was alledged on all sides, it appeared to them that the tract of land lying between Kennebec and St. Croix, was among other things granted by the said charter to the inhabitants of the Massachusetts bay, &c. Also, that the right of government granted to the said province extended over this tract of land.
“That it did not appear to them, that the inhabitants of the said province had been guilty of any such neglect or refusal to defend this part of the country, as could create a forfeiture of their subordinate right of government over the same, or of the property in the soil that was granted to them by the said charter, it being sworn by several affidavits that a fort was erected there, and for some time defended at the charge of the province, &c.
“And as to the question stated in the case, upon the effect of the conquest of that tract of the country by the French, and the reconquest thereof by Genl. Nicholson, they conceive that the said tract not having been yielded by the crown of England to France by the treaty, the conquest thereof by the French created according to the law of nations only a suspension of the property of the former owners, and not an extinguishment, and that upon the reconquest of it by General Nicholson, all the ancient rights, both of the province and private persons subjects of the crown of Great Britain did revive and were restored jure postliminii—For which reasons they were of opinion that the said charter still remained in force, and that the crown hath not power to appoint a particular governor over this part of the province, or to assign land to persons desirous to settle there, &c.
“In the year 1759, a petition was preferred to his majesty in council, signed Sterling, William, Phillips Lee, and Mary Trumble, praying that they may be put in possession of the tract of land between Pemaquid and St. Croix, with all the rights and privileges of the first earl of Stirling, and that the governor of Massachusetts bay might be required to withdraw and cease to exercise jurisdiction therein, &c.
“In 1761, the general assembly of the Massachusetts granted to his excellency Francis Bernard, esq. the Island of Mount Desert, lying within the tract aforesaid; and the said grant being presented for the royal confirmation, the right of the province to this country is again called into question.
“From the foregoing facts relative to this tract of country may fairly be deduced—
“First. That the persons claiming under William first earl of Sterling, have no right or title whatsoever to the said country or any part thereof.
“Secondly. That the province of Massachusetts bay hath a clear and undoubted right and equitable title to the soil and jurisdiction of the said country, and every part thereof under such restrictions and limitations as are expressed in the royal charter.
“With respect to the first it is to be observed, that the alledged agreement of the council of Plymouth, was made by a small number of the said council to raise estates to themselves, not to answer the main ends and design of their charter, the settling colonies and carrying the christian religion among the natives.
“That this agreement and the assignment of the several parts of the country never had any effect with respect to any one of the persons to whom they were assigned—Sir Ferdinando Gorges and captain Mason, the only persons who ever entered upon any part of the country thus assigned, claiming under other titles, viz. Sir Ferdinando, from a royal grant from king Charles the first in 1639, and actual possession and improvement for a great number of years together, and this grant contained only the lands between the rivers Newichewanock and Kennebeck, whereas his share of the assignment took in all the lands between Merrimack and Kennebeck.
“And captain Mason had before this assignment, in the year 1639, just after the grant made to the Massachusetts colony, obtained a grant in due form of the lands between Merrimack and Newichewanock, and had sent over settlers; but quitting all care of the colony the inhabitants put themselves under the protection of the Massachusetts until the year 1677, when king Charles incorporated them by royal charter as his province of New Hampshire.
“At the time of this assignment the lands from Pentageot to St. Croix were actually in the hands of the French, ceded to them by the treaty of S. Germains in 1632, although not possessed till 1635.
“It is acknowledged, that the Earl of Sterling had made some attempts to settle the Province of Nova Scotia, according to the grant thereof in 1621, and no doubt was at great expence, but being discouraged, about the year 1530, actually sold it to the French, by which unwarrantable proceeding Latour and others possessed themselves of it, and probably facilitated the cessions of it two years after and laid the foundations of all the troubles, the England have since met with, relative to it.
“But for the lands between Pemaquid and St. Croix, there is not the least evidence, that the Earl of Sterling or any of his posterity, ever expended one penny upon them, or that for near an hundred years together, they ever had one thought concerning them. The French under Monsieur D’Aniney in 1695 fortified Pentagoet, or Penobscot, and continued there, and in the country east of it, until 1654, when it was taken from them by the Massachusetts men under Cromwell’s commission, possessed until 1669, then restored to the French, and retaken by the Massachusetts in 1690.
“Had this assignment been a grant made and executed in due form and received the royal confirmation, it was the case with the first patent to the Massachusetts colony, yet a total neglect of it from the year 1631 to the year 1759, must by all the world be deemed a forfeiture, and to add any further arguments would be unnecessarily to prove a thing that is not doubtful.
“In the second place both in law and equity, the province of the Massachusetts hath a good title to the jurisdiction of this country; and also to the soil, under the restrictions and limitations in the royal charter.
For the legality of their title the province urges, that Great Britain hath a title to the country prior and superior to any other European state; that the French hath diverse times wrested it from the possession of the English, and the English have as often recovered it from the French; that in the year 1690, in time of war the French were drove from this part of Accady, as well as from that part distinguished by the name Nova Scotia, by the forcks of the Massachusetts Bay; that in the year 1691 the French not having reinstated themselves, it was incorporated together with other lands and made part of the province of Massachusetts.
It does not indeed appear that the French ever had a possession of this country after 1690.—Monsieur Villeban took possession of St. Johns again, but went no farther westward; great part of the country remained in possession of the Indians, and no exception can be made to the validity of the grant for that reason, but what will hold equally strong against the grants of all other the provinces and proprieties in America, whereat the Indians were in actual possession at the time of making such grants. And as an evidence of the true intent and design of the crown in making this grant, we may urge the instructions from time to time to the Governors of the province to recommend to the assembly the maintaining a strong Fort at Pemaquid, within the limits of this country, and for the protestation of it, which recommendations have been in general complied with, on the part of the province.
If the province then are acquired a title, how hath it been [. . .]. The only [province] is that this territory was reconquered by the French, and afterwards recovered by General Nicholson, and by the treaty of Utrecht ceded to Great Britain, and by this means the right which would otherwise [. . .] in the province, is vested in the crown. It is acknowledged, that the commission of Subercase, French governor of Accady, included all the country to Kennebeck; but supposing an actual exercise of jurisdiction, which is not admitted, yet a full answer is given to this objection by the attorney and solicitor general in his late majesty’s reign, viz. That the conquest was only a suspension of the property; that the ancient right both of the province and private persons were revived and restored, jure postliminii. And it must be understood, that the right of jurisdiction as well as property was restored, for in consequence of the approbation of the lords committee of council of this report, her majesty was pleased to recall the instructions and powers which had been given to Governor Phillips of Nova Scotia, and to Colonel Dunbar, which were inconsistent with the jurisdiction of the Massachusetts; and in consequence of this revocation, the governor of the Massachusetts, by proclamation, promised protection to the inhabitants. And all writers upon the civil law, agree in giving this sense and extent to the jus postliminii. In the digests, lib. 49, tit 15, it is defined, “Postliminium est jus amissœ rei recipiendæ ab extranco, et in statum pristinum restituendæ inter nos ac liberos populos regesque, moribus, legibus constitutum. Postliminii is that right which is settled by laws and customs between us and kings and free states, of receiving from a foreign nation what we have lost, and of having it restored in its former state. And Grotius de jure belli et Pacia, lib. 3, cap. 9, sect 13. Quod de agris jus est idem esse arbitror de omni jure quod solo adhœret. Nam et loca capta ab hostibus quœ religiosa vel sacra fuerunt, si ab hac calamitate fuerint liberata, quasi quodam postliminio reversa pristino statui restitui, scripsit pomponius.—The same law which is to be observed concerning the territory, I suppose, is also to be observed concerning every priviledge belonging to it. For according to Pomponius, such places as were appropriated to sacred or religious purposes, which after being conquered are freed from that calamity by a kind of postliminii, are to be restored to their former state, &c. And Puffendorffe in his law of nature, &c. book 5th, c. 6, sect 26, says—But if a part of a people be recovered by the people, they were for some time divided or torn from, or by their allies, they again incorporate with the old body, and return to the place and rights they had before.
“It is farther to be observed, with respect to this country, that notwithstanding the frequent changes it has undergone by passing backwards and forwards from one nation to another, by force, or in consequence of treaties or conquest, yet neither side have ever been willing to acknowledge the original right and title of the other, and upon the renewal of the war, have made this country and Nova Scotia constantly an object: and it is for this reason that the French commissionaires at Paris were so fond of the distinction between cession and restitution. And when by the treaty of Reswick, it was agreed that all places should be mutually restored, no acknowledgement can be inferred from thence of the right and title of the French to this country, or to one part of it more than another.—And it is a certain fact that the English, after this treaty, continued their possession of all that part west of Penobscot, without molestation from the French, only as they have been aiding and encouraging the Indians against all parts of the frontier. And there is no certainty, as has already been observed, that the French, after the treaty, took possession of any part east of Penobscot, St Johns where they had a fort, being out of the limits. And further, it was a good argument, against calling the legality of the Massachusetts’ title in question again, that it has been twice in effect determined, once in the year 1718, when the solicitor general reported that the crown had divested itself of its right, and it was thereupon proposed to the province to give them an unlimited power to grant a part of these lands, provided they would give up all claim to the remainder, and still more fully in the year 1732, when the attorney and solicitor-general upon a full hearing, reported that the province by charter, had a grant of these lands, and a right to the jurisdiction, that there had been no forfeiture, and that the crown had no power to appoint a governor over them as a separate government; and with this report the lords committee of council agreed, and thereupon humbly proposed to her late majesty, then guardian of the kingdom of Great Britain and his late majesty’s lieutenant within the same, that Colonel Dunbar should be ordered to quit the possession of all said lands, and that her majesty should revoke so much of her instructions, &c. as has been already recited, which was done accordingly. Now considering that this was a controversy in which the province by their agent was made a party, and the merits of the case was then largely and fully considered, the determination then made ought to be a bar to all further question concerning the title upon the same merits, otherwise a determination which might now be made may be called in question thirty years hence, and strifes and controversies will be perpetuated.
“If we consider the title in point of equity, the province can have no competitor.
“The English, of New-Plymouth, were the first of the British subjects who had any footing at Penobscot, &c when disposed by the French in 1635, made an attempt in conjunction with the Massachusetts to recover the place, but were not strong enough. With the assistance of the Massachusetts, it was recovered from the French in 1654.
“When all the country west of Penobscot, in the year 1672, was destitute of protection, upon application to the Massachusetts it was afforded, and jurisdiction exercised there, until possession was taken for the Duke of York.
“In the reign of King James the second, under the government of Sir Edmund Andross, the Massachusetts defended the country in an Indian war, and upon the revolution recovered it from the French at their sole expense.
“After the grant by the royal charter in 1691, it became the more immediate duty of the province to defend it. They were called upon by the crown to do it; particularly to maintain a fort at Pemaquid. The chief cause of all the troubles and expenses of the province during that war was the contiguity of this country to the settled parts of the province, the Indians there being a constant scourge to every other part of the frontier. Upon a treaty of peace in 1693, these Indians were brought to a submission by the crown of England, and the government of the Massachusetts.
“During the whole of queen Ann’s war, an annual heavy charge lay upon the Massachusetts for the defence of this and other parts of the province against the Indians of this country, and in 1722 a new war broke out with the Indians Instigated by the French, which continued three or four years at greater expence than the preceeding. A peace being concluded in 1716, the province for the security of the frontier and promoting the settlement of the country, submitted to an engagement to supply the Indians with goods at the prices which were sold at in Boston, and to allow them for their furs as high prices as they were sold at in Boston. This agreement made it necessary for the province to build forts and truck houses at Georges river, Kennebeck, Brunswick, and Saco, and to be at the expence of constant garrisons in each, and to keep a sloop continually passing to and from this part of the province. And although this annual charge bore no proportion to the annual charge of a war, yet as it continued near twenty years, in the whole, it will amount to a very large sum. Upon the commencement of the war with France in 1744, the Indians renewed their hostilities; the province was more successful against them than in the former wars; the success of the province army in the reduction of Cape Breton struck terror into them—and the forces kept in one pay of the province on the frontiers caused the Penobscot Indians wholly to quit the river and country, add to retire to the Indians of St. Francois and other Indians of Canada, but during the whole war, and for several years of the present, war garrisons were maintained at the charge of the province in several parts of this country, and, except in the winter seasons, forces kept continually scouting or marching upon the back of it.
If the expense occasioned to the province by this particular tract of country could be ascertained, it would be found more than ten times the value of it.
“Now if we consider that a tract of country is incorporated by the crown, annexed to and made a part of a province; powers are given to the government of that province to make grants of it under restrictions and limitations; the government is called upon to protect and defend this country, and in consequence thereof a very great annual expence is incurred for sixty or seventy years together, the Indian possessions are extirpated, and by this means a territory which was of no value before is become valuable: is it possible to conceive that under these circumstances, these powers should be taken away or called in question?
“It may seem superfluous to add, that none of his Majesty’s governments in America can claim greater merit from the use made of the power of granting lands than the Massachusetts government can. From the beginning of the colony, the principal thing consulted has been the bringing forward the settlement of the country; and the [Pomoeria] or outlines of the settled parts of the province have by such grants from time to time been extended in proportion to the increase of the inhabitants: there being no instance of manors and vast tracts granted to particular persons, nor any instances of lands sold except some particular tracts within a few years past, which by reason of the settlement of the country around them were rendered more valuable, and even these the purchasers are enjoined to bring forward the settlement of, in a limited and short space of time.
“The ancient limits of the province, having been contracted by his late Majesty’s determination of the line between Massachusetts and Newhampshire, there remains no considerable tracts of province lands, except in the eastern country; and none there upon or near the sea, except in this particular tract and those upon or to the eastward of Penobscot River; and great numbers of the inhabitants are desirous of removing with their families to this part of the country, and bringing forward the settlement of it; which it is probable will not be otherwise effected until after a long course of years, and an expence to Great Britain in some proportion to the expence occasioned by the settlement of the provinces of Nova Scotia and Georgia.
“Inasmuch therefore, as the province of Massachusetts Bay, hath a legal and equitable title to the jurisdiction and soil of this tract of country, under the restrictions and limitations of the royal character, and it is evidently for his Majesty’s interest that the enjoyment of this jurisdiction and property, should be continued to the province, it is humbly hoped that his Majesty will be graciously pleased to order that the province not be molested therein; and that such grants as have been or shall hereafter be made by the said government: of any part of this country, may obtain the royal confirmation.
The committee appointed to prepare a state of the title of the province to the country between the rivers Kennebeck and St. Croix, have prepared the foregoing, which is submitted, in the name and by order of the committee, January 18, 1763.
“In council, 20th January, 1763. Read and accepted, and ordered, that the Secretary cause a fair copy of this report to be made and transmitted to the agent; together with copies of such vouchers, to any of the facts as the committee shall furnish him with. Sent down for concurrence.
A. Oliver, Secretary.
“In the House of Representatives, February 1, 1763, read and concurred.
Timothy Ruggles, Speaker.
In addition to these, I had another Journal in which was recorded the voyage of Governor Pownal, to Penobscot, his treaty with the indians there, and his solemnly taking possession of the river and the country on both sides of it in the name and by the authority of the province of Massachusetts Bay. This volume has been borrowed or mislaid or something worse; so that I have it not in my power, to give it in all its details.
These volumes, i.e. Shirley and Maitlands memorials, the Journals of the House of Representatives, and the charter and laws of Massachusetts Bay, had run all hazards with me in a leaky Ship, every hour for fifteen days in danger of sinking; and through Spain and France and Holland, and thence back to Paris.
When they were produced and laid on the table before the British Minister and his associates I saw no great symptoms of surprise in any of them excepting the tall and venerable clerk of the Board of trade; his countenance and the agitation he was in, convinced me that he knew the contents of these volumes as well or better than I did. It was impossible but he must have been familiar with them all. It was manifest enough that the Comte De Vergennes was not the only refined politician with whom we had to do.
When the gentlemen had read from his ancient records, all that he thought proper to read of misrepresentations of Coram and his associates against the Massachusetts Bay, requesting the gentlemen to peruse my other volumes at leisure, I read the foregoing report, and before I had gone half way through, I saw that all the gentlemen, not excluding the clerk himself, were fully convinced that they had taken possession of ground they could not maintain or defend. Although they did not expressly acknowledge their error, the subject subsided and we heard little more concerning the subject. The clerk with his records soon returned to England. In the next letter you will receive a few short reflections upon some of the preceeding papers.
Printed Source--Boston Patriot.