From James Sullivan
Boston 20th May 1802.
Having the honor of receiving your letter of the 10th. instant, I hasten to communicate to you my ideas of the subject matter of its contents.
When I was under a Commission as Agent of the United States, on the controversy with Great Britain, regarding the River St. Croix, I forwarded to the office of the Secretary of State, a map of the Bay of Passamaquady, of the Schoodiac, and of the lines of the whole dispute.1 That map was accurately and elegantly composed from astronomical observations, and actual surveys. As that map is under your eye, there is no need of my sending a fac simile, but I refer you to that for an explanation of this letter.
The treaty of 1783 with Great Britain, evidently contemplates a river, as the St. Croix, which has its mouth in the Bay of Fundy.2 Both rivers claimed by the parties, empty their waters in the bay of Passamaquady. The Agent of the United States urged the Commissioners to settle the boundary, through that bay to the sea; because the Treaty expressly recognized the mouth of the River, as in the bay of Fundy, which is [a] limb of the Ocean, and the other bay united with it, might be considered as the rivers mouth; but they declined it, on an idea that their Commission extended no further, than to an authority, to find the mouth and source of the river, and that, let which ever would be the river, it had its mouth three leagues from the sea, in Passamaquady bay: they therefore limited their decision, on its southerly line, to a point between St Andrews, and the shore of the United States.3
The whole of the waters of Passamaquady Eastward and Northward of Moose Island, and of the Island of Campo-Bello, are navigable for vessels of any burden. The Channel between Moose, and Deer Islands is the best. The Channel between Moose Island and the Continent of the United States, is shoal, narrow, & not navigable for vessels of consequence. That between Campo-Bello and the main, called the West passage, is rendered hazardous and dangerous by a bar of rocks, and is so narrow and shoal, that no vessel of considerable size will be risqued there, excepting on a fair wind, and at the top of high water. The tides there are exceedingly rapid, and rise near about fifty feet. Therefore any settlement which would deprive the United States, of a free navigation, as far to the Eastward & Northward as the channel you propose, that is to the one between Moose and Deer Islands; and North of Campo-bello, would ultimately destroy the important commerce, and valuable navigation of an extensive territory within the United States: for as you may observe on the maps, there is no river of consequence, between the Schoodiac, and the Penobscot; and that the waters which issue, from numerous and extensive lakes, in the interior parts of the country, running into the sea, as the Schoodiac, will give an advantageous, and invaluable transportation, to the articles of commerce.
Your construction of the Treaty of 1783, which renders the waters dividing the nations, common to both, (where they are navigable,) must be reasonable and just. The English people, have in many instances, practised upon the treaty, under such a construction. There has been no interruption to the American navigation, in any part of Passamaquady bay; but our vessels have proceeded through that bay to the shore of the United States, at and near Moose Island, and have gone into the Schoodiac, above St. Andrews point, & anchored on the Western side of the channel, where they have discharged their cargoes. There have been some seizures, where goods have been carried from those vessels, over the English side, but the goods have been condemned and the vessel discharged. These seizures being made within the jurisdiction of the United States, as to the vessels, were clearly infractions of the Law of Nations. There was a seizure lately made, of a vessel of one Goddard of Boston. She was taken from her anchor, on the American side of the channel, in the river established by the Commissioners as the St Croix, and carried over to new Brunswick, but she was acquitted by the court of Admiralty, with damages and cost. Campbell who made the seizure, appealed to England, merely to avoid the costs & damages, where the cause is now depending and under the attention of Robert Slade a Proctor, who is the advocate for Mr. Goddard.4
There is a clause in the Treaty, that the United States, shall comprehend the Islands, within twenty leagues of any of the shores of the United States, and lying between lines drawn due East from the aforesaid boundaries between Nova Scotia on the one part, and East Florida on the other, as they shall respectively touch the bay of Fundy and the Atlantic Ocean.5 This circumstance that the mouth of the St. Croix, is settled to be, between St. Andrews point on the East and the American shore on the west, three leagues within the Island of Campo bello, draws this consequence to the treaty, that nearly all the Islands, in Passamaquady bay, are within the United States, by the above provision in the Treaty, unless they are taken out by an exception, which I shall presently notice. A line due East, (as you will see on the plan,) from the Schoodiac mouth at St. Andrews point, takes in nearly all the bay. A line South 67° East will go to the North of Campo bello and take two thirds of Deer Island on the West. A South East line, from the middle of the Schoodiac mouth, passes on the Channel—between Moose & Deer Islands, and thro’ the centre of Campo bello.
The consequences attached to this provision, may be in some measure controuled by an exception annexed to it in these words “excepting such Islands, as now are, or heretofore have been, within the limits of the Province of Nova Scotia.”6
The Island of Campo-bello is confessedly within the exception, and therefore it may be said, that the principle of common privilege, to navigable waters, will not give our nation, a right to a navigation northward of, and between that, & the other Islands in the bay, because that they, being all within the same exception, the right of a common navigation in both Nations, may not extend, to the waters between that and them.
But the answer to this, is, that the clause establishes the Jurisdiction of the United States, by lines which clearly include all the Islands in the Bay of Passamaquady, and all within the Bay of Fundy comprehended to the South of the East line drawn from St. Croix; while the exception can extend only to the Islands, formerly within the jurisdiction of Nova-Scotia, inclusive of the privileges necessary to the occupancy of them. The principle therefore of the common right to navigation on navigable waters, which divide two nations cannot apply here, because in that case, the line of national jurisdiction, seems to be settled on the channel, but here, in this case, the jurisdiction is definite, express, & ceded, according to the lines agreed on as above described.
The ancient charter of Nova Scotia, to Sir William Alexander in 1638, included all the country from the Kennebunk7 to the bay of Chaleur.8 The treaty cannot mean by the expression, “heretofore” within Nova Scotia, all the Islands in that Charter. If it means the Islands which were within a more recent description of it, where the boundary westward was the St. Croix, excluding the Territory of Acadia, which was placed under jurisdiction of Massachusetts, by the Charter of that Province in 1692, & bounded on that River.9 The river Schoodiac being now the established St. Croix, there can be no question, in regard to Massachusetts, extending to the Channel where it joins that river. But Moose Island which I have described before, lies two leagues below, what the commissioners made the mouth of the St. Croix; and very near the American shore. This was never granted by the crown of England, or by the Government of Nova Scotia, before the Treaty of Peace: nor was there ever an occupancy of it, by subjects acknowledging the authority of Nova Scotia, nor did that Province ever attempt to exercise authority there. Long before the Revolutionary war, it was in the occupancy of people, of & from the late Province of Massachusetts bay. The soil has I believe, been granted by that Province, or by the state, since the Revolution to the People who had it in possession. I do not know the date of the grant. There have been, as I am informed, recent Grants, by the Province of New Brunswick, of that Island: but no formal claim on the part of the English nation has been made to it. The grantees of that Province, who have speculated on the pretended right of the English nation, have excited civil officers, under the authority of the Province [of] New Brunswick, to attempt to execute precepts there. These attempts were repelled, and I have not heard that they have been recently renewed. Should the jurisdiction of that Island be found within the English authority, there can be no doubt, how the right of property would be settled; this renders the dispute of consequence to the Commonwealth of Massachusetts, in a pecuniary point of view.
If the argument above stated does not prove that the Jurisdiction of the United States, is extended to all the waters of Passamaquady bay, but that the treaty leaves the navigable waters of the same, which form the natural boundaries common to both, it is of great consequence, that any claim made, under the crown of the English Empire, to Moose Island, should be subverted. But if their having the Island, under the reservatory exception, does not deprive the United States of the jurisdiction, on all the waters, Southward of the East line, drawn from the mouth of the Schoodiac, the consideration of the property alone, gives consequence to the question.
The channel where the waters more directly issue from the Schoodiac to the bay of Fundy, between Moose & Deer Islands; and between Deer Island & Campo bello, as described in your letter of Instructions to the Minister,10 is, quite adequate to all navigation of our country.
You mention a resolve of the Legislature, wherein the subject of the Navigation in Passamaquady bay is mentioned: I have attended to a resolve of the tenth of March, which proposes, that the Governor should request the President of the United States to take measures for settling the disputed jurisdiction, to certain Islands in Passamaquady bay:11 but I do not know of any dispute in that Bay, as to Islands, excepting what I have stated as to Moose Island.
The settlement, & plain establishment of a line from the head, or source of the Cheputnatecook, which is the source of the St. Croix; and empties its waters, through a long chain of Lakes into the Schoodiac, has become necessary, because that Massachusetts is making grants of the lands in that quarter: and the Province of New Brunswick is in the same practice, controversies may be created by interfering locations, in pursuance of, or under pretence of those grants. Such controversies can have no guide to their adjustment, excepting lines drawn thro’ a vast extent of wilderness, where many known, & unknown causes, will affect the magnetic variations. These disputes on National or even Colonial, or State jurisdiction are not easily settled, where they are connected with private claims.
By the Treaty of peace it is provided, that the Boundaries shall be, “from the Northwest angle of Nova-Scotia, viz. that angle which is formed by a line drawn due North, from the source of the St. Croix, to the highlands, along the highlands which divide those Rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the Northwesternmost head of Connecticut river.”12
You will see by the maps of that part of the country, that the line which runs North from the source of the St. Croix, crosses the river St. John, a great way south of any place, which could be supposed to be the highlands, but where that line will come, to the Northwest angle of Nova Scotia, and find its termination, is not easy to discover.
The boundary between Nova Scotia & Canada, was described by the Kings proclamation,13 in the same mode of expression, as that used in the Treaty of Peace. Commissioners who were appointed to settle that line have traversed the country in vain, to find the highlands designated as a boundary. I have seen one of them, who agrees with the account, I have had from the natives, and others, that there are no mountains or highlands, on the Southerly side of the Saint Lawrence, and northeastward of the river Chaudiere. That from the mouth of the St Lawrence to that river, there is a vast extent of high flat country, thousands of feet above the level of the sea, in perpendicular height; being a morass of millions of acres, from whence issue numerous streams & rivers, and from which a great number of Lakes are filled by drains. That the rivers originating in this elevated swamp, pass each other wide asunder, many miles in opposite courses, some to the Saint Lawrence, and some to the Atlantic sea.
Should this description be founded in fact, nothing can be effectively done, as to a Canada line, without a Commission to ascertain and settle the place of the Northwest angle of Nova Scotia, wherever that may be agreed to be; if there is no mountain, or natural monument, an artificial one may be raised. From thence the line westward, to connecticut river, may be established, by artificial monuments, erected at certain distances from each other; the points of compass, from one to the other may be taken: and the ascertaining the degree of Latitude, which each one is placed on, from actual observation may be very useful. Though there is no such chain of mountains, as the plans or maps of the country represent, under the appellation of the Highlands, yet there are eminences from whence an horizon may be made to fix the latitude, from common quadrant observations.
In the description of the morass, which is said to crown the heights, between the United States & lower Canada, it ought to have been noticed, that though those swamps are vastly extensive, yet in the acclivity from the Atlantic, to their highest elevation, as well as in their declivity to the St. Lawrence, great tracts of valuable country are interspersed. On the banks of the river Chaudiere, and perhaps on the banks of other Rivers, running to the St Lawrence, the settlements are approaching fast towards those of the United States. This circumstance will soon render, an established line of national Jurisdiction, absolutely necessary.
Should there be any thing within my power which will give aid to the government on this occasion you will please to command me. I am &c. &ca
(signed) Ja Sullivan