5043.3 
 
 C3 
 
CvONFirjENTIAL. 
 
 Remarks vpon the Tru Location of the Intan%iional 
 ^^ounclaj-7j n'nr, ai Ihr mouth of the River St. Clair, 
 witli reference to the so-called Anicrlcaii Canal. 
 
 Attention has been dirocttnl to this question in consequence of the 
 seizure, by Customs Officials of the United States, of the steam barge 
 ill- INDEEU and ^vood barge CAMPBELL, on Lake St. Clair Flats, on the 
 27lh of last June, *Wr landing cord-Avood at a pii'r on the Western side of 
 a Canal then bei.ig constrrcted through those Hats. 
 
 The object of the following remarks is to shew that the Canal, as laid 
 down on a pLui, dated 22ud ^•oveml)er, 1»70, by Mr. F. L. Foster^ ^ 
 rrovincial Land Surveyor, of Windsor, Canada, and described thereon as ..eTe/t-creu^ *' 
 " iVmerican Canal made by U. S. Govt.," is wholly withijx Canadian 
 territory. 
 
 The arguments are : 
 
 1 The boundarv line thronah Lake St. Clair, ne laid down on a map TmMnar of me 
 aceouipauymL' Commissi*. ncrs Barclay and Porter's Uepoi t under the 0th lYji'ltf,""""'* 
 J^rticle of the "rcaty of Ghent, 1^14, is not receivable as evidence of the 
 position of the . >undary. 
 
 2. The lu'port of the Commissioners drseril)es a })oundary line wliich 
 runs over one and three-quarter miles to the westward of the Canal; and 
 the position thus (L'scrilied is that uf the " true boundary." 
 
 e3. Put, if the description given in the Commissioners' Report, be lield 
 to support the aceuriicy of their map ; then, their decision, being con- 
 trary to the intiMit oi the Treaty df ITf^o. is subject to reconsideration, for 
 
 . ,. • ^''" Treaty of 
 
 tl"> Commissioners were only authorized to act " in conformity with the "'«='it- 
 true intent of said Treaty." 
 
 Where it has b(HMi considered prop t to draw particular attention to 
 certain passages, thesrC hav<' been ita! cis: I. 
 
 Miirainal references are given to indicatt; the : u h'v.ities from which 
 qiiot: tions have been made, and, with the. exeeption of Mr, ^['Micken's 
 lieport, the authorities may l)c found in the l'a:ii;im<iiitary Library. 
 
 The }>oundary lino, as laid do\Mi on the maps accompanying Messrs. 
 Earelay and Porter's Ucport, was intended to seive merely as a general 
 illustration of the text of their decision, and has no legal force to limit or 
 define the writt>>n description of the boundary as given in the report, — for 
 the following reasons ; — 
 
 1st, Tha contraotitig* p.irtiesdid not agreo to bo bound by maps. 
 
 Messrs. l],irclay and Poi to;' were appointed, under the Gth Article of urrtsvcf cix-. 
 the Treaty of Peace between O.eat Hritain and the Un ted States, signed ut ^ o'- ". i-'*>- 
 Ghent-24th D'cenibor ISM, " In de !'j;iiali'' the boundary now in dit^^pulo 
 " bi/a report or Declarafioa" under their hands and seals, aid " to dtvit/e" 
 
2 
 
 to -which of the parties several islands beloniii'd. " Vnd" in the woriTs of 
 
 Herti'ef« '•nil*''- , , rr i ..u iU <.- j , . . «» "i 
 
 tion.irrieyties. the 1 Tcaty, — " both parties cg-rire to consider ^urh desis; nation and decision 
 " as final and conchmoe." 
 
 2nd. The contractins^ parties, by the Treaty of Ghent',' I'pe- 
 ciully exclnded the use of map records as a means of bindiiiir themselves. 
 
 Idem. 
 
 Idem, p. 380. 
 
 Four of the Articles of the Treat}-— the 4th, 5th, (Jth and 7th,— have 
 reference to parts of the international boundary. 
 
 By the 4th Article, the contracting parties lay down that the Com- 
 missioners shall by " a declaration or report" undtT their hands and seals, 
 decide, &c., and " both parties shall consider such decision as final and 
 " conclusive." 
 
 The oth Article, after describing the purposes for vrhich the Com- 
 missioners are to be appointed under its authority, lays down that they 
 Idem, p. 3S:;. shall " be appointed, sworn and authorized to act exactly in the manner 
 " directed with respect to those mentioned in th^ next preceding Article, 
 " unless otherwise specilied in the present Article." The Article then 
 s/)ecifies that " The said Commissioners shall cause the boundary aforesaid,'' 
 &c., '• to be survvjyed and marked," &c., '■ according to the said provisions ' 
 of the Treaty of 1783, and the " said Commissioners shall make a map of 
 " the said boundary, and am ex to it a Declaration under their hands and 
 " seals, certifying it to be the true map of the said boundary, and par- 
 " ticularizing the latitude and longitude of the North-west angle of Nova 
 " Scotia, of the North westernmost head of Connecticut River, and of such 
 " other points of the said boundary as they may deem proper. And both 
 " parties agree to consider such 31ap and Declaration as finally and cou- 
 " clusively fixing the said boundary." 
 
 The 6th article — that bearing specially on the subject in hand, — after 
 describing certain doubts which had arisen with regard to the boundary 
 as described in the Treaty of 1783, and repeating the injunction that the 
 Idem, P.3S3. ^^^q Commissioners to be appointed, '-shall be appointed, sworn, and 
 " authorized to act exactly in the manner directed with respect to those 
 " mentioned in the next precedin^g ;ivticle, iinlesa ulhcrwise specified in this 
 " present artivit ," specifies that " the said Commissioner shall, b;/ a Report or 
 " Declaration, iinder th. ir hands and seals, desiscnate the homidirjj through 
 •' the said river, lakes, and water communications, and decide to which of 
 '■ the two contracting parties th»' several islands lying within the said river, 
 " lakes, and water communications, do respectively belong, in conformity 
 " with the true intent of the said Treaty of 1783, and both parties agree 
 " to consider surh designation and de>.'ision as final and conclusive." 
 
 ia.-u), r-si. The 7th article aiithorizes the Commissioners, appointed under the 6th 
 
 Article, upon their oaths, "to fix and determine" the continuation of the 
 boundary line to the most north-western point of the Lake of the Woods, 
 and ' to decide " to w^hora the several islands lying along the boundary 
 belong, and " to cause such parts of the said boundary as require it, to be 
 " surveyed and m ' 'c' d ;" and the Article then lays down that " the said 
 " Commissioners shall b;/ a Report or Declaration, under th 'ir hands and 
 " seals, designate the boundary aforesaid, state their decision upon the points 
 " thus referred to them, and particiTlarize the latitude and longitude of tho 
 " most north-west, rn point of the Lake of the Woods, aud of such other 
 
" parts of the.said boundary as they may deem proper. And both parties I'^^^^'^-^^/^^l'^- 
 " a'^rce to consider such designation and decision a.s final and conclusive." '^'". ". f- J'*- 
 
 From the forogoinfr, it appears that the exact manner in which the 
 Commissioners were requir.-d to record th.'iv decisions, was particularly . 
 
 specified for each of the l')ur eases, -and th.- contracting parties bound 
 themselves to consider as linal, only the decisions recorded in the manner 
 specified. 
 
 Now, in the 6th Article, which authorizes the appointment of Com- 
 missioners to decide upon the boundary parsing through Lake St. Clair, no 
 mention is made of a map in the specification of the manner in which the Com- 
 missioners were to record their decision ; and, inasmuch as the manner in 
 which the Commissioners were required to record their opinion wa^ 
 [ Specified without reference to a map, the injunction that they sho\;ld be 
 authorized " to act exactly in the manner directed in the next preceding.:dem, p. :s3. 
 " Article, unless otherwise specified in this present .drWc/f," pointedly exclude'* 
 maps, which were required from Cuuimissioners acting under the 5th 
 Article. 
 
 The correctness of this view is further shewn by a comparison of the 
 terms in .vhich the contracting parties agree to abide by the Commissioners 
 decisions: — 
 
 In the 5th article "both parties agree to consider such Map and '■""'■ ^'*'- 
 " Declaration as finally and conclusively lixing the said boundary." 
 
 But in the 6th article " both jiarties agree to consider such designa- i,ij,„,_ p ~y^_ 
 " tion and decision as final and conclusive." 
 
 Nor is there anv room for doi\bt as to tho meaning intended by the 
 expression to desi^-nate " bv atlfi/ort or Dfilaiaiion" since in the ' Auievican -^tu-r.wr-, usi- 
 
 * r- . . Is.i*, \ ,,1. IX, ^ p_ 
 
 Project of a Treaty as returned by the Biitish to the American Plenipo- ">'••• <-"'-«"i- 
 tentiaries', it will be se(>n that the expression came particularly tinder tlie 
 consideration of the negotiating parties, and was applied by them to tlio 
 case of the 4th Article, which. Irom its very nature, required no iiiap. And . ^^^ ^o.,. g-^ 
 aarain, in the Convention between Great Britain and the United ^States of ^"'"''^ ■■ '• '"" 
 America, relative to the reference to arbitration of the disputed points 
 respectinir tin; Boundary Line, under the oth Article of the Treaty of 
 Ghent, sigin^d at London Sei>tember '-^. 18'^T, the following sentences will 
 be ibuud in close i^roxiinity to one another : 
 
 " No maps, surveijs or fopogiaphiral evidenco of any description shall I'lrm. r. 1335. 
 " be adduced by either party beyond that which is hereinafter stipulated." 
 
 "Each party shall have full power to incorporate in, or annex to, either 
 " its first or second statement, any portion (/ the Reports of the Commis- 
 " sioners, or papers thereunto annexed and other written Documents laid 
 " before the Commission," &c. 
 
 The exceptions mentioned in the first sentence as adducible, are " the 
 " Map called, Mitchell's Map" and "The Map A." 
 
 The word " Maps' in the above extract is clearly used in antithesis to 
 " Reports" and " other w ritten Documents." 
 
 3rd. The Commissioners did not annex, to their maps, a 
 declaration, under their hands and seals, certifying the maps to be true 
 ams of the boundtiry line. 
 
Should it be contended, notwithstanding what has been said above, 
 that the maps constitute mor tlian a mere illustration of the Commis- 
 sioners desis^nation and decision, and that they ioria part of these in the 
 same spirit that a map, under tJie "dh Arti«jle. was constituted a part of 
 the Commissioners decision in that cuse ; slill, it is to be observed that 
 the maps delivered with the decision undei the 6th article, are of no lesal 
 effect, for the Commissioners failed to comply with the condition of the 
 Hortsi"f'i r.,iiec 5th Article which required them " to annex to the map, a declaration under 
 
 tfcm of Ti-ciitit-v, * ^ 
 
 Vol. II, p. !t!i 41 their hands and seals, certifyini^ it to be the true map uf the said boundary." 
 
 PUite Pnrers IS21. 
 l«2i Vol. IX, 11. 
 791. 
 
 Idtjn, r. tSS. 
 
 IJem, p. 701. 
 
 I(U-rn, p. 7r2. 
 
 IJem. 
 
 IJem. 
 
 liom, pp. 732-.1.1. 
 
 IJem, p. 7M. 
 
 The Commissioners in their Report, signed at Utica on the 18th of 
 June 1822, ref&r to the boundary, merely as being "more clearly 
 " indicated by a black line on a series of maps accompanying this 
 " Iteport." — While, on the face of the maps, they are merely " identified by 
 " certificate, subscribed by the Commissioners, and by the two principal 
 " Surveyors employed by them." 
 
 4th. The Commissioners themselves, did not contemplate that 
 the maps delivered by them would be made use of to limit the d.'scriptiou 
 of the boundary given in their Report or Declaration. 
 
 In the preamble of the Declaration of the Commissioners, tbey state 
 their duty to be to " desif^nate the boundary by a Report or Declaration 
 " and to decide to which of the two Contracting Parties, the several islands. 
 " lying within the said Iiivers, Lakes, and "Water-commuiiieationrf do 
 " belong, in conformity with the true intent of the Treaty oi 1783.' 
 
 Xow in the Report of the Corami.ssioners, there are live distinct cases 
 of reference to maps accompanying their Report : 
 
 a. As an assistance in trai'in? " the followinu' described line" which 
 line, as described in writiuir, thi> Commissioners declare to be " the true 
 " Boundary intended " by the Treaties ol" 1783 and of Ghent, ls]4. 
 
 b. As " Exhibiting correct Surveys and delineations of all Rivers, 
 '' Lakes, "Water-communications, i-iid Islands embraced by the 0th Article 
 " of the Treaty of Ghent." 
 
 c. As being " identifici by a Certificate, subscribed by the Commis- 
 " sioners, and by the two principal Surveyors employed by them." 
 
 d. As a means, — by reference to letters and numerals, to distinguish 
 certain islands of which the names were not given; and to distinguish 
 some of;-, group of islands, from others of the same group, having but one 
 name applicable to all. 
 
 e. And, as shewing "a line (drawn on the map with black ink, mid 
 " shaded on one side of the point of intersection with blue, and on the 
 .' other side with red) passing across the river at the head ol St. Joseph's 
 '' islands, an 1 at the foot of the Neebish Rapids, which line denotes the 
 " te minatio I of the Boundary" under the 6th Article of the Treaty of 
 Ghent. 
 
 But in no case will there be ''onnd any reference to a map, which will 
 justify a belief that the Comn. issioner < themselves regarded those they 
 furnished, in any other light than as a.i assis .nc(! to a clearer understanding 
 of their Report, more particularly with r. feren ■> to the position of name- 
 less iikuds, which could most easily l>eid"..tified j\ an illubtr;itive mnp 
 
7J1. 
 
 Tkis view is fully confiniipd by the fact that the Ist, 2n<l, 3rd and ofh "^'f.^^^^Yx'''^' 
 cases of ri'foreuco are iiilimhued nn>ioly paronthetionlly, while the charac- iw." 
 ter of the 4th case of r.'foriMice, clearly accounts for the greater importance ij<,,n, p.Tjj. 
 given to iV, by the omission of parenthesis. 
 
 In tlie lormer cases, the sense is clear, definite, and complete, withont 
 V.\> pireiitli -ticil ruforence to m:ips; but in the 4th casi-, until the letters 
 and numenils are atisoeiated villi the islands to which allusion is made — 
 the sense, although clear and complete, is u!i<letermined ; and the reference 
 was, therefore, properly made ^vlthout parenthesis. Yet in this c;ise, the 
 map cannot be considered as liraitin:; the sense of the l{eport ; — for. in spirit 
 :ind in l:i<t, the dcsi/uatiou of au inland by an arbitrarily chosen numeral, 
 liMs ex:irtly, and only, the same force as its desiuiiarion by a nam". The 
 onlvditi.'renee between the came*, — and one arisiiiLr out of tteir nature, is 
 that H*mes were already associat*»d with the island.-, to which they referred, 
 while a nnvins, - in this instance miips, — had to be adopted f<*r assoeiatin;^ 
 the numeral*! with the nameless i>;lands to which //if// referred j l*ut this 
 assDciatiwn itnci^ established,, the authority of th" map ceases with rejiard 
 to the l>oundyry line, lor th" Coiumissioaers ■■• do decide and declare that jicm, r. 7'j- ana 
 " the followiiiir described line is the true b>u,i larv," aud iu that descrip- 
 tion no reference is; made to niapN except ior the purpose just above de- 
 tailed. 
 
 Sth. The location oi' ih*' l:<"u;;davy line on the Commission- 
 ers' maps ot Lake St.Ciair. lieiwecn Delioit I.'ivcr ami liiverr^t. Clair, does 
 not au-ree with the dcliniiion oi' that part oi the line as dcAicribed iu 
 the Commissioners' lleport, which is declared to be the "true line." 
 
 The objects for appointing Comniissicners are thus stated in the 6th 
 Article of tlje Treaty ot tlhent: — 
 
 " Whereas by the formi-r Treaty of Pence, that portion of tho boun- iiprt^id-, roi>r;. 
 '• dary," \c^ — " was (Icelared eo be iilo:ic>; the nhtliie of the said river into \'<ii\, i^'s'^^' 
 " Lake Ontario, thronuh the midd'p of said Lake until i* strikes the 'JeM. 
 *' communication by water between that Lake anil Lake Erie, thence alonij 
 " the /«/VW/f of said communication into Like Erii, throuuh the 7«(''A//e of 
 " said Lake, until it arrives at tlie water communication iM'tweenthat Lake 
 " and Lake Superior. And whereas doubts have arisen what was tho 
 " ni/Wrf'e of said river, lakes, and water communications, and whether cer- 
 " tain islands lyiiii;' in the same," &c. " In order, therefore, linally to de- 
 '* cidc Ihae duubtf, they shall be rel'erred to two Coinniisioners," &c. 
 
 One of the duties of the Comrai.'<>*joners was, therefore, particularly to 
 remove doubts arising from the use of the word middle iu the Treaty of 17^3. 
 
 In laying down the line from Detroit River to TJiver St. Clair, the 
 Commissioners decided that, from the middle of th(> Kiver above (Jrcat 
 Turkey Island, it should pa.ss by the N'ortliwest of, and near to the Island 
 " called Isle a la I'eche, to Ldce St. ("lair; thence, thioudi the middle of ;''»'\."'<re'j.T2i 
 
 ~ I 'A > o , IX, i\ 
 
 " said Lake, in a direction to enter that mouth «r chiinnel of the Kiver St. Clair ''"' 
 " which is usually denominated The Old Ship Channel ; Ihfnre, «/««<,'• the 
 " middle of snid rh'U'iifl, between Squirrel Island on the South-east, and 
 " Ilerson's Island on the North-west, to the Upper end &c. : Theuce — '' 
 
 Now, after the description of tho course of the line through the upper 
 part of Detroit River by the N. W, of Isle a la VHchc to Lake St. Clair, 
 
state rarers.iszi- the Sentence, " thence, throucfh the middle of said Lake, in a direction to 
 
 ItZl, Vol. IX., p. • • o 
 
 ■**• " enter that mouth or channel of the River St. Clair visually denomina+dd 
 
 " the Old Ship Channel," evidently means that the line should be drawn 
 from near the N. W. point of Isle a la I'echo along the most direct naviga^ 
 ble course, in this case directly, to the entrance, wherever that entrance 
 may be, of the Old Ship Channel. To read the sentence as implying an 
 irregular or curved line stretching out into Lake St. Clair in an indefinite 
 medial direction, is to suppose that the Commissioners had been inattentive 
 to one of the only two kinds of doubts which they had to remove, viz., the 
 meaning of th? word 'middle,' and the sovereignty over the islands along 
 the boundary. Eat, such a supposition is quite untenable, for immediately 
 after using .. words " through the mid He of said Lake" the Commis- 
 si )ners accurately defined the course as "in a direction to enter that mouth 
 " or channel,"' &c. 
 
 Any irregular figure, such as that presented by Lake St. Clair, has a 
 middle point ; and a line might be drawn from any other point, such as 
 the N. W. angle of Isle a la Tfcho, through it in a direction ultimately 
 to roach any third point, snch as the entrance to the Old Ship Channel. 
 But, again, to suppose that the Commissioners intended to con^'ey this 
 meauincr, is to avoid ; plain and simple constructiou, and to accept a 
 rendering at once questionable and laying them opini to a charge of ne- 
 glect. Moreover, the line, as indicated on the map, does not pass through 
 the middle point of the Lake St. Clair ; nor is it drawn, from its entrance 
 ''*"■ into the lake, " in a dir<Htion to enter that mouth or channel of the River 
 
 " St. Clair which is usually denominated the Old Ship Channel." 
 
 The channel of a River is plainly not the River itself, but Ihe deeper 
 part or hollow in which the princip.il current flows ; and, it may, or may 
 not, be marked by banks shewing above the surface : and the channel of a 
 river usually runs out for some distance, beyond the visible banks. 
 
 As if purposely to guard against any other than the common accepta- 
 tion of the word "channel" just given, the Commissi niers introduced the 
 alternative term " mouth,'" — which lucidly conveys the meaning that the 
 channel is to be entered where it begins. 
 
 Again, in describing the course of the line passing from Lake Erie up 
 Detroit River, the Commissioners say :—' Thence" (that is from the 
 South of the Middle Sisters) "to the middle of Detroit River, in a direc- 
 tion to enter the channel which divides Bois-blanc and Sugar Islands ; 
 thence up the said channel to the west of Bois-blanc Island, and to the east 
 of Sugar, Fox, and Stony Islands, until it approaches," i*tc. But the islands, 
 — Bois-blanc and Sugar, by which the particular channel meant, is indi- 
 cated, — are not at the mouth of Detroit River : thi y are at some distance up 
 the stream. Yet it is clear that the word rhnnnel here implies that iha 
 deeper part or navigable course is to be followed from the mouth of th? 
 River up to the passage between the islands. Siniih.rly the words "in a 
 direction to enter that mouth or channel of the River St. Clair usually de- 
 nominated The Old Ship Channel ; thence along the middle of sai 1 chm- 
 nel, between Squirrel Island on the South-east and Hersons Island on the 
 North-west" &c., must be understood as implying that the course ot the 
 Old Ship Channel up to Squirrel and Hersou's Islands is to be followed. 
 
 i'iiU!rrt«?i.*tr' The following "Sailing Directions for Like St. Clair, to enter St. Clair 
 
 •' River by the South Pass or Channel," extracted from " The Coast Pilot- 
 
A' compiled by Thos. S. Thomp",on, Licensed Tilot for the Lakes— 5ih Edi- 
 tioi— p;ibilHh:'.l ;it Detroit 13 J^," will s^rve to show where the entrance to 
 the South Pass, or Old Ship Chami"], of the Iviv.T St. Clair really is ; and 
 also, will furnish an example pi' t!^e common acceptation of the phrase 
 ." to enter \)y a channel." 
 
 " To pn/rr ll/p St. C'lnir Rivrr b// the South Pasa or Chanriff, run out of ^ '<='"• 
 ." Detroit River E. N. E. until the two lirst points north of the Li'^-hthouse 
 -" are open ; then N. K. A X. -0 miles, till yon mi!:- th.^ South Pass Liqht- 
 ." honse, irhrn in 1 j ft-rt ivili-r, brin'jr th" Liiihthousc and lieacon Light in 
 !' range, steer up on this range, pussiug hlack buoys to pirt, and red buoys 
 ." to starboard, till up to boacon liirht : th-ncc, haul oil" to S. E. and leave 
 " red buoys to starboard and blai'k t > i)art, until into the river." (Sco foot 
 note.) 
 
 " There are range lights kept en the starboard hand, c^-posite the 
 '.' tu'-ning point jnto the river, and are thus : red and white for each bend 
 ' or reach, first from the beacon light to abreast the point, and then up the 
 " river and vice versa." 
 
 B3sides the above evi .on^e as to the position and course of the 0!u Tie ortbyo. ^r-. 
 Ship Channel, charts and oral evidence iu louiiimalion are referred , to J;:;'"' [f^J'^'V.;;'^'' 
 in Mr. M Mickens lieporl on this subject. j.isLke-otui«.i. 
 
 The coursjj above described is approiim itdy laildown on the accom- ,.{t"Ji^u'^\.ri V\ 
 panyine tracing from a United States Government Chart; also the bonii- nnc tystni 
 
 F - =• -^ ;ei or Mariue. 
 
 ,dary lino transferred frijm the Goniniissiouers Messrs. Barclay and Porter's 
 Map. 
 
 It is, therefore, PA-idcnl that the boundary line, as sliQ-.vn on the Com- 
 jnis.-ioncrs' map, ngrcc^ ni>iiher in its dcpartuie from Deuoit Uiver, its 
 .course acro^.s the lake^ nor at its an iv.d at th(> Old Ship Cbann'M, with their 
 de§ciiptiou of '-' the true boundary inlendetl" by the Treaties of 1783 and 
 1814. 
 
 And for the various reasons enumerated the Commissioners' ir.np has 
 no legal force to limit or define their written description of the boundary. 
 
 This conclusion suggests the following questions, and calls for expla- 
 nation : — 
 
 "Wl^y did the Commissioners furui.sh Maps with their Report? 
 
 And, since they did funiish ^)aps. ;^ud inlioated the course of the 
 boundary line upon thein, what reasan is th'-re for supi^osing that the line 
 £0 laid down was not intend(Ml as an exact lepresentalion of the descrip- 
 tion in their Report ? 
 
 The 8ti^ Artji'le of the Treatv of (Ihent sui)plies • full answer to the 
 first of thege questions. The Article dire.-ts th; t, 
 
 "The geveral boards nf two Oommis.-^iuncrs ineniioiiiHl in the four 
 (' preceding articles, shall revp,>otively hive |)ower ty upi>oint a secretary, 
 " and to emp/oi/ such Siirrei/oix or otliiT p 'i.^o'is as tlnv shall .judge noccs- 
 ." sary. Du[>licates of all their l■e,<l^•cliv • rep >rfs, d.'cla-aiions, statements 
 •" and decisions, and o'' then- aecounls, and o! the journal of their proceed" 
 
 NoTE.-Whnt is lieip p.Hp.I i\„- ft ,v ii the . li iiii. I i-oiilineil I elwoen vi->ibl« l);'.i)J|cj. 
 .t>e a/ap tl}» friiima (Jin'iiuiji's on Uie t gited .SlUis (iuviaimfiu (.liul. 
 
" ingi shall be delivered by them to the Agonts of ITis Britannic Majcstj', 
 " and to the A'j:ents of the United States who way be respectively 
 " appointed and aiithorized to manage the busiiie«;s on behalf of their 
 " respective Orovernments." 
 
 In reply to the second question, besides the reference made to the 
 subject in the precedina: l):i'ae<, it is further to be observed, that on the 
 'Exact Tra'-in?' of thnt portion of the Commissioners' Map (furnished by 
 H. E. the Governor (rener 1) inoludin;^ the entrance to the Kiver St. Olain 
 there is no reference Uf sul>.iqueous topo:^raphy, — and it is therelore 
 assumed that no such id'ercnee will be found, alf'eclincr the course of the 
 boundary line, ou any of the series of maps hiruished by the Commis- 
 sioucrs. 
 
 Now, as the Commissioners did not note on their maps, either sound- 
 ings or the windings of subaqueous channels, it was not to have been 
 expected that a line,— intended ])y them merely to afibrd a q-Mieral illustra- 
 tion of tlieir Re{K>rt, and on so small a scale that siich minute details as 
 those here referred to, would have Ijeen practically useless, — should have 
 been drawn so as to sli^'W the narrow and irreijular entrance throuprh the 
 shoals at the mouth of the Old Ship Chiiiuiel, siiiei' the written description 
 " in a direction to enter that moutli or channel,'' sufficiently explained its 
 course. 
 
 It is presumed, +o", that tlir donbts, with refen-nce to the term "mid- 
 dle," and to the soverdu'iitv ov.-v ciTlrtia i>!aiid<> which the Commissioners 
 had to remove, wi-re not coi!ii<>(ti'(l with I'.'.iei'rtiinty as to whether the 
 line should be drawn so as to intcrl'erc, or not, with naviu'ation ; — but^ 
 assuminf:^ the ris^ht of noriixalion at iihiHeimb'!', the doubts were with respect 
 to the term "middle'" .-/< nj/'rrtinis the liofttrfi'^iilii nvt-r cpttiiiu islands. 
 
 In the " form(>r Tvfaty of T'cmcc" — tliat of ITS.^, — the boundary was 
 described as rumiin;? alonu- th" middle of a rivi^r, wati-r-coinmunications, 
 and la'ic?s witliout refercMice to islands ; •' ;iud,'" in the words of th(^ 6th 
 Article of thi' Tri'aty of (Ihcnt " whereas doubts have arisen what was 
 " the middle of said liver. lakes and wati'r-iominnnications, and whether 
 " ceitain islands lyniu- in the same were within the Dominion of His Bri- 
 " tannic Majesty or of th > Initi'd States : In o Jer therefore hually to 
 " decide these doubts," &c. 
 
 The (jiiotatioii made from Mr. Clay's letter to Mr. Gallatin — the United 
 States MinistiT I'lcnipotentiary at the IJiitish Court, shews that it wss 
 taken i'or granted that the boundary line w as to be so drawn as not to in- 
 ti'rfere with theriijht of cither of the nations oci'tii>\ins' the opposite banks, 
 to the naviuatiou tiirouirhout the co-terminous navigable boundary. 
 
 Auain. tii." 1st .\rticle o( the 'ireatv of Ghent provides for the general 
 resioiation of captured territory: but, in the stli Articl(> there is a provi- 
 sion, applicable to the islands referred to in the tith Article, which con- 
 templates the transl'(<rence of some of these — indubitably the property of 
 one nation, to the other nation. 
 
 The application of this provision to the islands referred to in th« 6th 
 Article is only explicable on the supposition that it wasassumt>d ihecoiirso 
 of the boundary line was not to lie decided merely with a view to deter- 
 miniiig the Fovenignty over thea • islands; bui, th d this con. si deration 
 was to be subordinated to another — the "reciirocal advantages and 
 
9 
 
 mnhiiil convonioncc" of the Troixty of 178:1 — iu\olviu:T the necessity for 
 drawing the line so as not tointermpt navigation ior either country. And 
 the omission, from the Commissioners maps of all note of soundings and 
 delineation of channels is plainly consistent with the foregoing view. 
 
 Moreover, it was to be expected thai had the Commissioners to define 
 the exact position of the boundary line on maps, whether sucli delin(>ation 
 was to be binding on the contritctintr parties, or not, the wording of tlie 
 6th Article of the Treaty would have conformed with that in the 5th and 
 7th articles. 
 
 Under the former of these : " tin' Commissioners shall cause the 
 " boundary al'oresaiJ, to be siirvfi/f/ and HKir/k'f/.'' And under the 7th 
 A'tiile the Commissioui'rs are directed •• to i-ause such parts of the said 
 '• boundary as lequire it, to ])e survri/ed and mar/ced'' 
 
 ])Ut the 0th Article makes no rel'.rcncr to a survey. 
 
 Thi' Commissioners, th<'n, iinnislicd niiips in compliance with the 8th 
 Article ot the Treaty of (iln-nt, but not b.■ill^• rc(|uire(l to mark the l)oun- 
 dary in sifii, nor to liTvni>li dclincatiMus ol' sub;Kiui'i)Us topography (which 
 would have iuvolv d an enormous and unui-- ssary addition to their 
 labor), they depicted the line as p.issini;- IVom visible to visible landmark 
 in a inanner to generally iilustral ■ tlieir written deseiipiion, which delined 
 a navigable eourse, and thus may be a.-,ouuii>d lor — the indelinite mi'dial ' 
 d:r, ■lion ifiviii. on l!ie ni.ips, to tli.- line uh.'ii passing through large slieets' 
 of navigable' water.* 
 
 Assuminrr. then, that the map eau be regarded onlv in the light of an 
 illustration, ex ept in so i'ar as it associates , ertain letters and numerals 
 
 with the islands to which these refer. —it remaius to be decided where the 
 line, described by the Commissioners as tlir fine one, is; for they were not, 
 as in other cases, required to mark it in situ. 
 
 Now, short of mathematical (• ihnical terms, it is conceived that no 
 language can be clearer than that wiiich tlie < ommissiouers themselves 
 have used in describing tlie disputed i>i>rlion of the boundary. In commoa 
 terms, they have defined two points, and directed that the line should be 
 drawn from one of these to the other. 
 
 But, — since the map illustration indicates an irregular line, while the 
 simplest construction to be attributed to the written description, implies a 
 straight line, — the question naturally o .curs: — Could there have been any 
 reason to induce the Commissioners to project the line irregularly ? 
 
 If the whole boundary described by their report be followed through- 
 out its course, it will be strikingly manifest that the Commissioners' 
 decision was determined with a view to uninterrupted navigable commu- 
 nication being available to each of the contracting parties ; and that, while 
 this object was never negliHted at any point throughout the line, the only 
 deviations in degree, were made with a view to an equitable apportionment 
 of island property. The latter consideration, however, was in no case 
 allowed by them to supersede the former. 
 
 •It will he fl-<iprv:id tint tlie t^iite(l.'>'t!)tps riiieiu of Topogmiihicil Eng neers' Chailiiof 
 Ibt luko ouiii ilie l>oundai> lioe tvlii-u ii enlirs lUo l.kHs. 
 
1» 
 
 During negotiations between the United Statos alid the British Gov- 
 Tornmeut with reference t^ the riyht, clainuvl l)v the lorraor. of iiavio-atin" 
 the lower St. Lawrence — Mr. Clay in a letter (datt>(I. Departmoiit of State 
 Washington 19ih Tune IvSiO.) to Mr. r-illaliii. refers to the Groat Lake.*, 
 and says " they are entirely enclos'^d within the Territoiios of tho Unitivl 
 ftnvPrpfi-, i<!.ii. " States and Groat Britain, and the ,,u 'o their vriscalion. romnnn fo hi h 
 
 I'.T.' . Vol. X X., 
 
 r. i"t9. '' IS jTua/a, eed by the fait' of Treat ie^^. a d resif upon the ftill hi'jher niilhoriti/ 
 
 '' of the law of nature. The Ciroat J.,;ikos are tiuiti'd by but o!ie natural 
 " outlet to the Ocean, the naviu'atiou of which (Owan) is common to all 
 
 B'n'e Pnpon'. iMi- " mnnkiud. That outlet, atonfr a considerable part of its coiirfe, fonm a com- 
 
 l" 2. Vol. IX, |,. , 
 
 l*"- '• injt boundary between the Territories of the United States and Great Britain 
 
 " and lo that extent the ri^ht of navirraling it is enjoj/ed bjj bn'h. The Unitod 
 " States contend that they are iiivostrd with a right to pass from those lakes 
 "the inroht'sled jnicilege of nafi'j;ating which they exercise, through that 
 " n.itural outlet to the Ocean," &c. 
 
 From this ex.ia-t it is clear that the United States Government held 
 the same view as the l.Vport of the Commissionov* iiidic:it'-s wm> held by 
 them, with rogurd to the right of each oF the Contracting Parties to rotjin 
 nninterrupted navigable communication along the boundary the Commis- 
 sioners had to deliue. Moreover, lour years aftf>r the decision of the 
 Commissioners under the Gth Article of the Treaty of Ghent had beeu 
 delivered, the United States Government are seen, in the foregoing quota- 
 tion, to have declared that the right of navigation at the now dispnt'.d 
 p.iint — for it is included in the "common boundary" to which reroronce 
 was made, — besides resting on the supreme Law of Nature, was also guar- 
 anteed to both Parties, by faith of Treaties. 
 
 But such guarantees could not have existed if the boundary was run 
 as it is marked on the map of Lake St. Clair which accompanies th" Com- 
 missioners report, — for there wa^ no navigable ch niiel to t'l • S^ith or 
 Eastward of the Old Ship Cliannel leadinir out of Lake St. Clair into River 
 St. Clair. On the other hau<l, there is ano;he • navigible, but circuitous, 
 channel in American water — the new Ship ch.inuol, — to the North-west of 
 the Old Ship Channel. 
 
 In 1854 a Bill passed both houses of Co icr"'s-, appropriating a large 
 sum for the improvement of the natitral entrance to ihe Uld Sliip Channel. 
 The rro8 (lent v^^toed the Bdl. Then the Secretary oi' the Bulfalo Board 
 of Trade wrote, on the ]Oth April, 18'>.). to the Prov ncial Secretary of" 
 Canada, asking aid from the Canadian Government, and saying that on the 
 Board attempting themselves to carry the objject of the Bill intO' eflTjct, 
 " it ina< asrrrtaiiied that the Channel vas in CanwJiun water, and the /iroject 
 " was therrtore abandoned." Canada made the required grant, and the 
 Ignited States Government afterwards appropriated so«ie funds for the 
 same work. 
 
 Again, it may be asked : Why did the Comm'ssioners select the Old 
 Ship Channel as the course of the boundary ? V mf»re direct line might 
 have been drawn from Detroit River to River St. ClaT than that indicated 
 ou their map, — and, th.s too, supposing their object to have been to irive 
 Squirrel Island to one of the parties, and to assign Herson's Island to the 
 other. Nor, to accomplish this, was it necessary to cross dry land, for 
 there are several other courses, — at least three, to the h astward of the 
 boundary line, and all more direct, which would have satisfied the condition 
 of mere water-communication, if that were all that was required by the 
 Treaty of 1783. The only explanation, — and it is a very simple one. and 
 quite consistent with the principle which manifestly actuated the Com- 
 
11 
 
 inission«»rs tarouirhout (lie pPTformanoo of thoir dnty, — i« thnt iho Old Ship. 
 Cliiriiit'l iilioni <i i lie most Jiltct navigable commuiiicaUwii bctwciiii Lake 
 St. Clair aud L:tl:e Huron. 
 
 A refcrpiH 1^ to charts, or to the " Sailinf^ Dirpctions" already quoted, 
 will show t'.Trt no interruption to navicratiou occurs between the north- 
 west point ol' Isl • :"i 111 rcclie, or near tluTcto, and thi> entrance to the Old 
 Hliip Channel bi/ //> mon/li ; — while, on the other hand, the lig-hthouhcs, 
 bcai-or.s, and irn-ifuiar course indicated in the loimer, and the soundings 
 noted on the latter, prove the existence oi'unnaviQabi" shoal water between 
 Isle a la Peclic md the point where the existence ol the navigable channel 
 is first marked by banks shewing above the surface ol' the water. 
 
 ISow the so-called American Canal strikes into the Old Ship Channel i-^.t^r'n Ma- 
 qitite close to the point just nii-ntioncd, and is cut through the shoals re- •■••ivattiicLej 
 lerrcd to, nearly paiallelto, aud a little to the westward, or American side 
 ol the boonndary line indicated on the Commissioners map; while, the 
 mouth ol' the channel, or its true councctinir point with Laki- St. Clair 
 basin, is more than a mile and three-quarters to the westward of the 
 American Canal. 
 
 It is to be observed, too, that whether the straiL,ht lino implied by the f.'j '%^,"''7x' "'"" 
 wortls "in n ilireclioii to enter that mouth oi- channel of the liiver St. Clair i-'-'S- 
 " usually deuoiniuated the Old Ship Channel"' — whether such a straight 
 line, i'lom near Isle a la I'eche, be drawn to the true entrance to the Old 
 Ship Channel, or to intersect it over one and three-fiuarter miles uj-) its t i.-m, i r. "»i and 
 cotir.'^e, and lie c n~ider 'd the •• true boundary line intended," in either "^-• 
 of these cases the Canal will be within Canadian jurisdiction, — in tlie lirst, 
 wholly so ; in the second, all but the upper portion oi its western side. 
 
 On the other hand, if it be held that the Commissioners Report supports 
 the view that the Canal is in American water, it follows that before 1><42* 
 Canada had no navigable commniiic-ition between Lake St. Clair and Lake 
 Huron, and tli" (jucstion is iiunn diately raised — Did the Commissioners com- 
 I>ly with the true intent of tlu' Treaty ol ITbo, which, in its preamble declares 
 ihat intent to have been '• to establish such a beneiicial and satisiactory (;ii.i'm'r<' poiiec- 
 " intercottrse lietween the two countries, w//r(/«. /Ac giounds of rrri/irornl \'""\-!i}.''^\^Ti\, 
 " at/ranlngesancl mti/iial coiiretiiencf, as may promote aud secure to both ''"'^' 
 " perpetual peace and harmony ?" 
 
 And a precedent for raising such a point may be found in the " Pro-j, 
 " test of the American Minister at the Cotirt of the Hague, against the i.-sa voi. xix, 
 " decision of the King of the Netherlands, upon the disputed points of''"* 
 " boundarv, und.'r the 5th Article of the Treaty of Ghent, of 1814, between 
 " '.-:.::t Britain and the liiited States— dated 'l2th January 1831." which jjem. ,.2u. 
 resulted in iliat decision being cancelled The ix>int ol the Minister's 
 protest was that the King's decision did not comply with the requirements 
 of the Treaty of 1783. 
 
 It has been shewn, then, that for many reasons, detailed above, 
 the maps accompanying the Comruissioners' Report ttnder the 6th Article of 
 the Treaty of Ghent cannot be accepted as part of their decision. 
 
 On the other hand the written Report describes the true boundary, 
 and is binding. 
 
 The course described strikingly proves that the Commissioners were 
 guided ill their decision, by an intention to coiilirm to each ol the Con- 
 tracting parties a right of navigation along the water-communications 
 
 •By Article VII. of th« .Ashburton Trenty. 1842. all the channels nnd p.issages between 
 the Kiver wnd Ukf f<t Ci ii wne de. lured "equdly fiee and open to the ships, ves.els 
 and t)oats of both parties. "—.Sute Pai>ers, vol. 30, 1841 42, p. 365. 
 
 NoTB —But it may be observed that a piob.ible effeot of diverting the utream of the Old 
 thip Channel, will be to throw n bar across the channel just to the weslwaitl of the point 
 wheie thp Oin ,1 ei.terb it,— and thus to rlofc ag.iinsl Omuda the pajsage which up to th« 
 pieaent time, bai been lued in commoa by the two uatioui. 
 
n 
 
 between tho Eastorn and W.-storn p;,rts of (h^.jr Territories. Tho Amori 
 pan r.ov.rnm.Mit iu.hl ,hat «„. h a ri.i.t was .hvirs by „:.turo ; :„n| n.or.- 
 pv.r, (our y-ars alter the pul.iieatio,, ,.f ,1... (■<,„.,„i,io„..rs .leeiMo,. toueliin-r 
 the boun.lary throuirh Uke St. Clair fh -y .l.-l.re.l ihat th. enjON m.Mit of 
 tlmndu was lunh .r assun.! ,„ l,.„i. Nations,.,! ,|,, lailh ol' Treaties 
 
 ^^" 7'^'"'' *'■ '^"^^^ ^ ''^''^ '^="» "l""'- aeeouMt lor .he trausli-rence of 
 
 islamls ...d.si>u.al,Iy the property ol' one „aii„n to ,he olhor as contem- 
 plated by .h- s,h Artiele of th. Treaty of (^h-nt. A:,.l, the Co.nmisso .er.' 
 \iavuy^ to .1 . .Kle i„ eonf,.rinity with tlv /ru,- iu>,',d o'C thj Treatv- ol' 1783 
 couia not have neijlected this eonsiderulion. ' ' 
 
 Hut they did not nede.i it: lor it i, oalv 1>v a strained interpretation 
 pi the words of thoir wriit.-u -le.serip.ic,.. thai th ■ cour.- of tlje hom.dary 
 line ean be so drawn us t,. interi-re H'ilh n....ra! navigation \nd the 
 ^trained interpretation resf.s upon a upVuikeu view reyarding the map« 
 lurnislied l(y the CMinmisjsioner.s. 
 
 No suhnriueons tapoirraphy is slunvn on thes^ maps; and it could not 
 have been e.xpected that on m.ps. «h .win- a line oulv with rofereuce tq 
 visible laudrairks, the Comrni .sioners would delineate that line as eon- 
 formui^rt., i!KMv;.,din5sorhidd..nehaun.^Ls for. not being required to mark 
 the line /.. <//v^ tl. y would „ot hav. n:. I .rtuLen the unnecessary and 
 laborious task ol' re .a/ding sou;iding.s. 
 
 Under thes , ci-c'tinstan-:s th^ gvi,,^! m vli il d^r .etion of tin boun- 
 dary line as delineat .1 on crossing la -e sh -ets of w.ter is periectly con- 
 sistent with th.> most familiar and mot literal interpretation of the 
 Loramissioaors doscripiion of tl^. tact line as r-Mrds Lake St. Clair. 
 
 But such an interpretation involves a line about two miles to th-? west- 
 ward ol that assu no 1 by th-3 constructors of tho so-called " American 
 Laual, and brings the Canal entirely within Canadian jurisdiction. 
 
 p. R. CAMERON, 
 
 Ottawa, <^°^'- ^ ^• 
 
 26th December, 1870.