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NEW YORK: SAMUEL ADAMS, PRINTER. 1 840 TABLE OF CONTENTS. Preface, Introduction, . Terms of the Treaty, . § 1. American Line, ^ § 2. British Line, § 3. Signification of the expression, « Highlands which divide Rivers," .... § 4. The term "Atlantic Ocean," how far contradistin guished from the Bay of Fundy, and from the Gulf of St. Lawrence, .... Intention of the Parties, .... § 6. Negotiations of 1782, § 6. Former Bouiidaries, § 7. Topographical Knowledge of the Negotiators, § 8. Recapitulation «... Appendix, ...... No. I. Acts of Jurisdiction and Opinions entertained subse quent to the year 1783, No. II. Notes on an essay in the Westminster Review, for June, 1840, signed C. B., \'^^^JiiUL'^.>■ . No. III. Observations on the Report of Messrs. Featherston haugh and Mudge No IV. Extracts from the « «< « No. V. Extracts from the Argument of the British Agent un der the Ghent Commission, Note Explanatory of Maps, . . . . . Maps, ...... 1. Reduced from Map A, agreed to by both Powers, 1827 2. Part of Mitchell's Map, 1775, which regulated the official proceedings of the framers of the treaty of 1783. Page V 1 13 13 19 31 39 61 61 72 83 96 105 107 127 136 165 174 178 IV CONTENTS. ! 3. Reduced from the Map annexed to the Report of Messrs. Featherstonhaugh and Mudge, 1840. Sketch of the Highlands claimed by Great Britain by Messrs. Odell and Campbell, 1821. . 4. Part of Cover nor Pownall's Map, London, 1776. « Em. Bow n's Map, London, 1775. " Map of Province of Quebec, London, 1776. " Map of Northern British Colonies in America, from American Military Atlas, London, 1776. I n PREFACE. The British Government appointed Commissioners, in the year 1839, for the pnrpose of surveying, 1st, the line heretofore considered, on the part of Great Britain, as the north eastern boundary of the United States, namely, that which extends from the source of the Chandiere to Mars Hill ; 2dly, the line from the source of the Chandiere to the point at which a line drawn from that source to the western extremity of the Bay of Chaleurs, intercepts the due north line ; 3dly, the line claimed by the Americans from the source of the Chandiere to the point at which they make the due north line end. The Commissioners have performed the duties imposed on them par- tially and as far as the short time employed in the exploration permitted. And the Government of the United States has lately appointed Commis- sioners for the same purpose, the result of whose proceedings can hardly be expected before the year 1841. It was principally, if not exclusively, the " nature and configuration of the territory in dispute," that the British Commissioners were direct- ed to investigate. It is well known, that the United States contend that the term " highlands which divide rivers," used in the treaty, does not imply either a mountainous character or an absolute but only a relative elevation. Bui Great Britain has an undoubted right to ascertain all the facts concerning the topography of the country, the knowledge of which is, in her opinion, important, or may be of any use for a coriert decision of the question. And had the Report of the British Commissioners been confined to that object, nothing more would at most have been ne- cessary, on the part of the United States, than the exploration which the Government has lately ordered. But the Appendix and a few pages only of the Report of the Commissioners relate to that investigation. The bulk of the Report is devoted to a discussion apparently of the me- rits of the case ; and its conclusions are of the most general nature ; pronouncing in decisive terms, that the claims of Great Britain to the whole of the disputed territory are founded in justice, and arc in plain accordance with Ihe 2d Article of the Treaty of 17H3, and with the phy- sical geography of the country ; and that the line which is claimed on th« ▼i PREFACE. ^ pari of the United Slalea, (a) as the line of Highlands of the Treaty of 1783, does not pass nearer than from 40 to 50 miles of the north-west, ernmostheadof Connecticut River, and therefore has no pretension to be put forward as the line intended by the Treaty of 1793. It might be inferred, from the general tone of the Report, and from the manner in which they are announced, that those conclusions, which declare, that the British line dues in every respect, and that the Ameri- can line does not fulfil the conditions of the Treaty, were deduced from the argumentative part of the Report. The inference would be altogether erroneous. The fundamental objection against the British line is that, for one hundred and twenty miles or about three fifths of its whole length, it di- vides or can divide no other rivers hut the waters of the Penobscot from those of the St. John, neither of which empties itself into the River St. Lawrence ; whilst the treaty expressly describes the boundary as be- ing from its beginning on the due north line, to the source of the Con- necticut, along the highlands which divide the rivers that empty them- selves into the river St. Lawrence from those which fall into the Atlantic Ocean. There is not in the Report even an allusion to that main ques- tion on which the two Governments are at issue. The only reason heretofore assigned why, if the boundary claim- ed by Great Britain was that which the negotiators of the treaty contemplated, they described it in terms contradictory of their pre- sumed intention, is their supposed ignorance of the topography of the country. The United States contend thai *he knowledge which the negotiators had of that topography was amply sufficient to enable them to describe without difRculty, and with the utmost precision, the boundary now claimed by Great Btitain, had such been their intention ; and that the boundary actually described in the treaty corresponds precisely with that claimed by America. This is another of the great questions at is- sue ; and in that respect, as applied to the British line, the United States cannot complain much of the Report. For although the Com- missioners say in conclusion, that Ihey have found a line of highlands agreeing with the treaty, yet they strenuously assert in the body of the Report, that those very highlands were well known, not only at the date of the treaty, but more than twenty years before : which renders the language of the treaty still more inexplicable. However that may be, the Report dues not disprove the assertion, on the part of the United (o) It is well known, that the line, from the source of the Connecticut to the aorth-western sources of the Penobscot, is common to the United States and to Great Britain, being on highlands acknowledged by both parties. The line here alluded to, which passes 50 miles of the source of the Connecticut, and is called, the line claimed on the part of the United States, is not and has never been claimed by them. ii- PREFACE. VU States, that the negotiators might have described with precision, if so intended, the boundary claimed by Great Britain ; nor is there any sat- isfactory reason assigned, why it was not done. On the part of Great Britain, two principal objections are raised against the American line. The first is, that the Rivers Ristigouche and St. John are not, in that clause of the Treaty which relates to the division of Rivers, to be taken as Rivers that fall into the Atlantic Ocean. That im- portant question is not alluded to in the Report. The other objection is, that the " highlands which divide Rivers" im- plies a considerable and conspicuous elevation and a mountainous char« acter ; and that the British line unites and that the American line wants those properties. The question of fact, which was the proper object of the investigation committed to the care of the Commissioners, is the subject of the Appendix to the Report, and is treated in the Report it- self. But it is silent on the previous question, viz : whether the term above mentioned does, as is contended for on the part of Great Britain, or does not, as the United States maintain, imply such elevation and mountainous character, {b) It is manifest, from the silence preserved in the Report, on all the true questions at issue between the two Governments, and on which de- pends the final decision, that the Commissioners considered those ques- tions as having been definitively settled in favour of Great Britain by her former agents ; and that the general conclusions annexed to the Report are deduced from the arguments of those agents, and not from those contained in the Report. Independent of the Barometric observa- tions and other facts actually ascertained by the Commissioners in the course of their exploration, the Report, diverted of its incautious and re- prehensive passages, and viewed under its most favourable aspect, is at most but a subsidiary document. In the argumentative part of it, it treats only of subordinate topics, many altogether irrelevant, and none that could, even if proved, affect the ultimate decision of the difference between the two Countries, (c) Nor has the Report even the merit of originality with respect to those subjects which it does discuss, as wilt clearly appear by reference to the British statements laid before the King of the Netherlands, {d) Those statements of the case, on the part of both Great Britain and the United States, two on each side, though printed, have never been {b) Those four main questions are respectively discussed in the 2d, 7lh,4th, and 3d Sections of the following essay. (c) See Nos. Ill and IV of the Appendix lo this essay. (d) The reader cannot refer to those statements; but the substance will be found in the 5th and 6th Sections, and in No. I of the Appendix to this essay ; which con- tain hardly any thing more than had been written and laid before the King of the Ne- therlands more than ten yearn ago. ! I Tiii PREFACE. publi.»hed. It would seein aa if both Governments, subsequent to the award, had, from mutual forbearance, thought it wiser not to commit themselves further than had been done, not to ogitate the public mind by a publication of those documents, and rather to apply their endeavours to the preservation of peace, and to devise some new mode of amicably settling the difference. However well disposed in both respects and successful iu attaining the first object, they had made but little progress towards the other. The case is now altered. A document has been brought forth, laid before Parliament and published, which, notwith- staadiug its high pretensions, gives but a very imperfect view of the subject, treats only of subordinate points, does not discuss any of the great questious at issue, and yet which from the boldness of its conclu* sions and the sanction under which it has oppeared, was calculated to produce and has made, in England at least, an impression unfavorable to the riglits and to the acts of the United States. It appears just and necessary that something should be done that may counteract that effect, and show at least, that the grounds on which they rest their claim are neither light and frivolous, nor certaiv.ly to be shaken by either the dis- coveries or the arguments of the Keport. Having been, jointly '.vith Mr. Preble, one of the agents who prepar- ed the Statements laid before the King of the Netherlands, the subject was familiar to me. I have had little mure to do, than to blend the two Statements into one, to alter accordingly the arrangement, to abridge as much as was consistent with an examination of all the arguments ad- duced by the other Party, and to revise the whole, with such additions only, as new suggestions however singular and some unfounded imputa- tions seemed to require. I have tried to indicate at least all the argu- ments and objections of the British agents ; and if I have omitted any, the omission is quite involuntary : for one of my objects was to make the people of the United States acquainted with the substance of all that had been suggested in opposition to the American claim. Yet, this paper is what it purports to be, an argument in behalf of the United States : and in order to have a fair and complete view of the subject, either the former British Statements should be published, or some other document be substituted, which should discuss the true questions at issue, and exhibit the British claim with perspicuity and in the most favorable view of which it is susceptible. I am sensible that nothing coming from me will alter the opinions adverse to the American claim, which may be entertained in England. The utmost that can be expected is that those into whose hands this es- say m.ny fall, may be induced to investigate the subject and to judge for themselves. But if the claim of the United States is, according to our convictiou.', founded in strict justice, it is to the British Cabiuet ilselfy »n^ toriil the I by iusi PREFACE. IX luent to the to commit )ubiic mind endeavours of amicably aspects and le progress t has been t, notwith- I'iew of the any of the its conclu- Inulutcd to in favorable s just and that eflfect, claim are Br the dis* ho prepar- he subject id the two ibridge as imcnts ad- additions id imputa- the argu- itted any, to make >f all that Yet, this United subject, tne other 3 at issue, favorable opinions England. this es- udge for to our et itself^ and without any intermediary, that the appeal must be made. In all in- ternational differences, the people almost always take it for granted that the foreign Government is in the wrong, and follow the impulse given by their own. The feeling is quite natural, generally proper, and ia this instance, common to both countries. The fact, that the Secretary of State for foreign affairs did lay before the Parliament of Great Britain the report of the late commissioners, affords strong evidence, that that distinguished statesman, amidst his more important and overwhelming avocations, had not found time thoroughly to investigate the merits of the case and to judge for himself. This is not at all surprising : I could quoto the instance of an intelli- gent and enlightened Secretary of State of the United States, much less burtheued with ofHcial duties than a British Minister, who, on this very question, did, subsequent to the award, propose to substitute, for the due north line, another which would have given to Great Britain the greater part, if not the whole of the disputed territory. Why tho proposal was made, and why it was not at once accepted, cannot be otherwise ac- counted for, so far at least as regards the offer, than by a complete igno- rance of the whole subject. In the various negotiations with Great Britain in which I have been employed, there v/as always an earnest desire to remove subjects of con- tention, and to promote friendly relations ; on almost all questions a con- ciliatory dispositi9n ; nothing at any time, that could shake my confi- dence in the siacerity and good faith of that government- And I do believe that it would do justice, if it was once satistied that justice was due. It is earnestly to be wished, that some one of the members of the en- lightened British Cabinet would take the trouble, to examine thoroughly and in all its tedious details that vexed question, not omitting a search in the archives of the state office, of the instructions and actual inten- tions of the British negotiators in 1782 and 1783. It seems to mo al* most impossible that, in a case in which, as I believe, there is no British jury or British chancellor who would not decide in favor of America, the result of an attentive ministerial inquiry afler truth should not be the same. Yet we may mistake our convictions for a demonstration of truth : to such error both parties are equally liable ; and should the govern- ment of Great Britain still remain unsatisfied, the investigation might at least lead to a nearer approximation towards a settlement, and could under no circumstance place the two countries in a worse situation than they now are. But under any circumstances whatever, tho question must be settled. It would be the herg!'. of madness and of wickedness to come to a rup- PREFACE. ture, and for such an object. Both governments are animated by a sin< cere and earnest desire to preserve peace. It is not believed that the English nation wishes a war with the United States. It may be confi- dently asseiied that, with an entire conviction of their right to the terri- tory in question, there is not a more universal feeling amongst the peo- ple of America, every where and without distinction of political parties, than that of the preservation of peace, above all of peace with Great Britain. It is the duty of the two governments speedily to devise and to adopt the means necessary for effecting the object ; and I believe that means may be found. The government of the United States has not been, consulted on the subject of this publication. And it is hoped that this full exposition of the claim of the United States was not only proper at this time, but may not be withou. its use in promoting a satisfactory settlement of the ques- tion. ] by a sin- d that the r be confi- the terri- st the peo- :al parties, with Great devise and lelieve that INTRODUCTION. ted on the losition of le, but may )f the ques- Thb frequent references made in the discussion of the north-eastern boundary of the United States, to various treaties and other public docu- ments, render it necessary to give in the first place extracts of those documents, together with some explanatory notes. On the 8th of November, 16U3, Uenry IV. King of France, appoint- ed Pierre de Monts, his lieutenant-general, in the country, territories, coast and limits of Cadie, (la Cadie,) since called Acadie or Acadia, commencing from the fortieth degree to the forty-sixth. By a charter of the 10th of September, 1621, James I. granted to Sir William Alexander a certain territory, under the name of " Nova Scotia,'* with the following boundaries : (a) « Beginning a^ Cape Sable, in forty-three degrees north latitude, or thereabout, extending thence westwardly along the sea-shore, to the road commonly called St. Mary's Bay ; thence towards the north by a direct line crossing the entrance or mouth of that great ship road, which runs into the eastern tract of laud between the territories of the Souri- quois and of the Etchemins, (Bay of Fuudy,) to the river commonly called St. Croix, and to the moat remote spring or source, which, from the western part thereof, first mingles itself with the river aforesaid ; from thence, by an imaginary direct line, which may be conceived to stretch through ^he land, or to run towards the north, to the nearest road, river or spring emptying itself into the great river de Canada; (River St. Lawrence ;) and from thence proceeding eastwardly along the sea- shores of the said river de Canada, to the river, road, port, or shore, commonly known and called by the name of Gachepe or Gaspe ; and thence south-eastwardly to the islands called Uaccaleos or Cape Breton, leaving these islands on the right and the Gulf of the said river de Cana- da or of the gret^t ship road and the lands of Newfoundland, with the islands to the same pertaining, on the left ; and thence to the head land or promontory of Cape Breton aforesaid, lying near the latitude of forty- five degrees, or thereabout ; and from the said promontory of Cape Bre- ton, towards the south and west, to Cape S)able aforesaid, where the per- ambulation begin, all which lands aforesaid, (a) This translation, from the original Latin, is the same which was inserted in the first ^ merican staieinent laid before the King of the Netherlands. 1 9 INTRODUCTION, Ijl shall at all times hereafter be called and known by the name of Nova Scotia, or New Scotland, in America." (6) [The western boundary thereby assigned to Nova Scotia difTers from the eastern boundary of the United States, as described by the treaty of peace of 1783, in the following particulars. l8t. The western source of the River St. Croix was intended by Sir William Alexander's charter; but by the treaty of 1783, the said river, from its month to its source, without particularly designating which source, is made the boundary : and this has been decided to be the river from its mouth to the source of its north branch. 2d. The line from the source of the River St. Croix, is, according to the churter, to run toieards the north ; (versus septentrionem ;) by the treaty, it must run due north, or directly north. 3d. The said line, by the charter, extends to the River St. Lawrence, and, by the treaty, to the highlands dividing the rivers, itc] On the 3d of April, 1639, Charles I. granted to Ferdinand Gorges, by the name of Province or County of Maine, a territory bounded on the west by Pascataway Harbor and the River Newichewanocke, (Piscata- qua River,) to the furthest head thereof, and thence one hundred and twenty miles north-westwards, extending from Pascataway Harbor, north- eastwards, along the sea coast to Sagaduhock, (the Kiver Kennebec be- low the confluence of the River Androscoggin,) and up the River thereof to Kynybecky River, and, through the same, to the head thereof, and into the land north westwards one hundred and twenty miles from the mouth of Sagadahock, &c. This grant was purchased in the year 1674, by the colony of Massa- chusetts ; and, although the name of Maine has since been extended to the country, eastwardly, as far as the Boundaries of Nova Scotia, the ancient Province of Maine, according to the aforesaid original grant, was bounded on the east by the River Sagadahock or Kennebec. On the 12th of March, 1663, Charles H. granted to his brother James, Duke of York, " all that part of the main land of New England, begin- ning at a certain place, called or known by the name of St. Croix, adjoin- ing to New Scotland in America ; and from thence extending along the sea coast, unto a certain place called Pemaquin or Pemaquid;, and 60 up the river thereof to the furthest head of the same as it tendeth northwards, and extending from thence to the river of Kennebec, and 80 up, by the shortest course, to the river of Canada, northwards." This last described territory, to which the name of Maine has since extend- ed, is that which, in ancient maps, is called Sagadahock ; and it will be perceived that it extended northward to the River St. Lawrence. Great Britain having, by the tenth article of the treaty of Breda, con- cluded on the 3lst of July, 1667, agreed to restore to France the country called Acadia, situated in North America, which had formerly been in the most Christian King's possession, the Duke of York obtained from Charles H. a subsequent confirmation of his grant, bearing date the 29th of June, 1674. The territory was afterwards governed underthe authori- ty of the Duke of York, and, at his accession to the throne, merged in the crown. (A) This grant was confirmed by a subsequent Charter of Charles I. dated 12th of July, 16'25. ] INTRODUCTION. 3 of Nova fTers from ) treaty of led by Sir laid river, ng vvhich e the river lording to ;) by the iawrence, rorges, by led CD the (Piscata- idred and lor. north- nebec be- er thereof reof, and from the f Massa- teiided to cotia, the nal graut, c. r James, d, begin- (, adjoin- ng along r|uid, and tendeth bee, and » This exteud- it will be jda, con- ) country en in the ed from the 29th i authori- lerged in edmho/" The three above described territories, Nova Scotia, the ancient Pro- vince of Maine, and Sagadahock, or the Duke of York's Grant, were, by the last Charter of Massachusetts granted on the 7th of October, 1691, by William and Mary, annexed to the then Colony of Massachusetts' Bay, as will appear by the following extracts of the said Charter. " We .... will and ordain that the territories and colonies commonly called or known by the names of the Colony of the Massachu- setts* Bay and Colony of New Plymouth, (these forming the now State of Massachusetts, or Massachusetts proper,) the Province of Main, tl)e Territory called Accadia or Nova Scotia, and all that tract of land lying between the said Territories of Nova Scotia and the said Province of Main, be united, erected, and incorporated hv the name of our Province of Massachusetts' Bay, in New England ; . . . . and do give and grant unto our said subjects the inha- bitants of our said Province or Territory of the Massachusetts' Bay, and their successors, all *hat part of New England, in America, .... and all the lands and hereditaments whatsoever, lying within, (here the limits of IVfassachusetts proper, and of the ancient Province of Maine are described,) and also the lands and hereditaments lying and being in the Country or Territory commonly called Accadia, or Nova Scotia ; and all those lands and hereditaments lying and extending between the said Country or Territory of Nova Scotia, and the said River of Sagadahock, (the Eastern Boundary of ancient Maine,) or any part thereof; Provided also that it shall and may be lawful for the said Governor and General Assembly, (of the Province erected by this Charter,) to make or pass any grant of lauds lying within the bounds of the colonies formerly called the Colonies of the Massachusetts' Bay, and New Plymo'ith and Province of Maine, in such manner as heretofore they might have done by virtue of any former Charter or letters patents ; which grants of lands within the bounds aforesaid, we do hereby will and ordain to be and continue forever of full force and effect without our further approbation or consent ; and so as nevertheless, and it is our royal will and pleasure that no grant or grants of any lands lying or ex. tending from the River of Sagadahock to the Gulf of St. Lawrence and Canada Rivers, and to the main sea northward and eastward, to be made or passed by the Governor and General Assembly of our said Province, be of any force, validity, or effect, until we, our heirs and successors shall have signified our or their approbation of the same." [It must be observed that according to that Charter, both Nova Sco- tia and the territory between it and the River Kennebec (or Sagada- hock) extended on the north as far as the River St. Lawrence : and that grants of land made in either by the Governor and General Assembly of the province, required the approbation of the King; so that, in order to be valid, such grants required both his consent and that of the Provin- cial Government. No other reason can be assigned for having thus annexed to the Province of Massachusetts, Nova Scotia, or Acadia, which had been restored to France by the treaty of Breda, than the state of war existing between the two countries, in the year 1691, when that Charter wa, granted. Great Britain, however, agreed by the treaty of Ryswick of 20th September, 1697, to restore to France "all countries, islands, fortss and coloniei, wheresoever situated, which the French did possess before 4 INTRODUCTIOir. fhe declaration of war." Acadia, or Nova Scotia, being clearly embra- ced by those expressions, and being thus severed fiom the British Do- minions, the clause of the Massachusetts Charter, which annexed that territory to Massachusetts, was virtually repealed, and became a nullity. The understanding of the British Government of the extent of that res. titution, will be found in the following sentence of a letter from the Lords of the Board of Trade, dated 3lth October, 17U0, to the Earl of Bellamont, the Governor of Massachusetts, viz : « as to the Bounda- ries, we have always insisted, and shall insist upon the -English right, as far as the River St. Croix."] France having, by the 1 2th article of the treaty of Utrecht, of 1713, ceded to Great Britain « All Nova Scotia or Acadie, ^vith its ancient Boundaries," that Province was not reannexed to Massachusetts' Bay, from which it had been severed by virtue of the treaty of Ryswick : but it was erected by the British Government into a separate Province. Richard Phillips was its first Governor, and he is, in his commission, dated the 11th of September, 1719, designated as '< Captain General and Governor in Chief in and over our Province of Nova Scotia or Acadie in America," without any description of the limits of the Province. The same style, and without any designation of its boundaries, is pre- served in the subsequent commissions of the Governors of Nova Scotia, till the year 1763. The territory lying between Nova Scotia and the river Sagadahock (or Kennebeck) remained a part of Massachusetts' Bay according to its charter. A question arose, however, some years afterwards, in that res- pect, which having been referred to the law officers of the Crown, (the attorney and solicitor general,) they gave it as their opinion : (dated August 11th, 1731 :) That all the tract of land lying between the rivers of Kennebec and St. Croix, is granted by their charter to the inhabi- tants of the said Province ; that the rights of Government granted to the said Province extend over this tract of land : — That it does not appear that the inhabitants of the said Province have been guilty of any such neglect or refusal to defend this part of the country, as can create a for- feiture of that subordinate right, of Government of the same, or of such property in the soil, as was granted to them by the said charter. That if the Province had incurred any forfeiture in the present cose, no ad. vantage could be taken thereof but by a legal proceeding, by scire facias to repeal their charter, or by inquisition finding such forfeiture : That the said tract of country, not having been yielded by the crown of Eng. land to France by any treaty, the conquest thereof by the French created S according to the law of Nations) only a suspension of the property of le former owners, and not an extinguishment of it: and that upon the reconquest of it, by General Nicholson, all the ancient rights, boih of the Province aud of private persons, subjects of the crown of Great Britain, did revive and were restored jure posiliminii. Whence they conclude that the said charter still remains in force, aud that the crown hath not power to appoint a particular Governor over this part of the Province, or to assign lands to persons desirous to settle there ; nor can the Province grant these lands to private proprietors without the approbation of the crown, according to the charter. [In Mitchell's map, published in the year 1755, the river St. Croix, and a due north line from its source to the river St. Lawrence, are, ao INTRODUCTIOir. O cordingly, made the boundary between Nova Scotia and New England ; embracing, under this last designation, the eastern part of Massachusetts, by the name of Sagadahock. Both Nova Scotia and New England are, in that map, published with the approbation of the Board of Trade, bounded to the north by the river St. Lawrence. And that river con- tinued, accordingly, to be the northern boundary of both, till the 7th of October, 1763 ; when, Canada, and all the possessions claimed by France in that quarter, having, by virtue of the treaty of peace of Febru- ary, 1763, been deflnitively ceded by her to Great Britain, His Britan- nic Majesty issued a proclamation establishing new Governments, and, amongst others, that of Quebec] The boundaries of that Government were, by the said proclamation, fixed as follows. " Bounded on the Labrador Coast by the river (c) St. John ; and from thence, by a line drawn from the head of that river, through the Lake St. John, to the south end of the Lake Nipiising, from whence the said line, crossing the river St. Lawrence and the Lake Champlain, in forty-five degrees of north latitude, passes along the Highlands which divide the rivers that empty themselves into the said river St. Lawrence from those which fall into the sea, and also along the north coast of the Bay des Chaleurs and the coast of the Gulf of St. Lawrence, to Cape Rosiers ; and from thence, crossing the mouth of the river St Lawrence, by the west end of the Island of Anticosti. termi- nates at the aforesaid river St. John." [The Highlands therein designated, being assigned as the southern boundary of the Province of Quebec, became the northern boundary of Nova Scotia ; the north west corner of which, instead of being, as here- tofore, on the bank of the river St. Lawrence, was thereby placed on the said Highlands.] The boundaries of the Province of Quebec were enlarged in another quarter by the act of Parliament of 14th Geo. HI. Chap. S3. (1774) commonly called the Quebec act. But those adjacent to Nova Scotia and Massachusetts were, by that act, defined in words nearly similar to those used in the proclamation of 1763, viz: '< That all the Territories, Islands, and Countries in North America, belonging to the crown of Great Britain, bounded, on the south, by a line from the Bay of Chaleurs along the Highlands which divide the rivers that empty themselves into the river St. Lawrence from those which fall into the sea, to a point in forty-five degrees of northern lati- tude, on the eastern bank of the river Connecticut, keeping the same latitude directly west through the Lake Champlain, until, in the same latitude, it meets the river St. Lawrence, from thence, &c . . oe, and they are hereby, during his Majesty's pleasure, annexed to, and made part and parcel of the Province of Quebec, as created and established by (he said Royal Proclamation, of the 7th of October, 1763." *' Provided alway:^, that nothing herein contained, relative to the boundary of the Province of Quebec, shall, in any wise, aiftict the boun- daries of any other Colony." Notwithstanding the opinion expressed in the letter from the Board of Trade to the Governor of Massachusetts, of 3(Jth October, 1700, of (e) Not the river of the same name which falls into the Bay of Fundy, but the ■mailer stream which, from the north, falls into the mouth of the tirvt Bt. Lawrence. I* mmm m : mi i ii. M mil!: O IlfTRODVCTIOIV. the extent of the cession made by the treatj of Ryswick ; and notwith- staDding the opinion of the law officers of the Crown, of August 11th, 1731 ; the attempt to dispute the right of Massachusetts, at least to the country lying east of Penobscot, was again renewed immediately after the treaty of peace between Great Britain and France of 1763. The Province of Massachusetts having made a grant to Governor Bernard, of an Island lying east of the river Penobscot, and which re« quired the confirmation of the Crown ; the Board of I'rade, in a letter of March 11th, 1763, to the Governor, say : « It may appear proper to observe to you, that the doubt conceived upon the claim of the Province of Massachusetts, is not founded upon the ailegatinu that the landi^ to the east of Penobscot, were not in posses- sion of the Crown at the time of granting the charter, but upon the oper- ation which the treaties of Ryswick and Breda, (by which treaties, this tract of country was ceded to France,) should be admitted to have had upon the charter itself. "We cannot take upon us, at present, to say how far all future consi- deration of this question is precluded by the order of Council, ground- ed upon the opinion of the attorney and solicitor general in 1731 ; this is a delicate point which should be reserved till the deed shall come regularly before us ; and, in the mean time, we cannot think it expedi- ent to advise any conditional grant whatever of this Island." On the same ground, saving clauses were annexed to the description of the boundaries of the Province of Nova Scotia, inserted in the com. mission of Montague Wilmot, as Governor of Nova Scotia, which bears date the 21st of November, 1708, in the following words, viz : Our Province of Nova Scotia, and which we have thought proper to restrain and comprise within the following limits, viz : To the northward our said Province shall be bounded by the southern boundary of our Province of Quebec as far as the western extremity of the Bay des Chaleurs, and to the westward, « although our said Province has anciently extended, and does of right extend as far as the River Pentagoet or Penobscot," (d) it shall be bounded by a line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth of the River St. Croix, by the said River to its source, and by a line drawn due north from thence to the southern boundary of our Colo- ny of Quebec. [The object of that attempt is explained in a letter from Jasper Mau- duit, agent in England for Massachusetts' Bay, to the General Court of that Province, dated 9th June, 1764. In that letter the Agent states from authority, confirmed by a subsequent interview with Lord Hills- borough, that if the Province will pass an actempowering their agent to !tates may be prevented, it is hereby agreed and declared, ihat the following are and shall be their boundaries, viz : from the north-west angle of Nova Scotia, viz : that angle which is formed by a line drawn due north from the source of the St. Croix River, to the Highlands, along the said Highlands which di- vide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the north.western- most head of Connecticut River ; thence, down along the middle of that river, to the forty-fifth degree of north latitude ; from thence, by a line due west on said latitude, until it strikes the River Iroquois or Ca- taraquy ; thence, along the middle of said river, into Lake Ontario, through the middle of said Lake, until it strikes the communication by water between that lake and Lake Erie ; thence, along the middle of said communication into Lake Erie, through the middle of said lake, until it arrives at the water communication between that lake and Lake Huron ; thence, along the middle of said water communication into the Lake Huron ; thence, through the middle of said lake, to the water commu- nication between that lake and Lake Superior ; thence, through Lake Superior, northward of the Isles Royal and Philipeaux, to the Long Lake ; thence, through the middle of the said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods ; thence, through the said lake, to the most north-western point thereof; and from thence, on a due west course, to the River Mis- sissippi ; thence, by a line to be drawn along the middle of the said River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude. South, by a line to be drawn due east from the determination of the line last mentioned, in the latitude of thirty-one degrees north of the Equator, to the middle of the River INTRODUCTION. Apalachicola or Catahouche ; thence, along the middle thereof, to its junction with the Flint River ; thence, straight to the head of St. Mary's River ; and thence, down along the middle of St. Mary's River, to the Atlantic Ocean. East, by a line to be drawn along the middle of the River St. Croix, from Us mouth in the Bay of Fundy, to its source ; and, from its source, directly north, to the aforesaid Highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence : comprehending all islands within twenty leagues of any part of .he shores of the United States, and lying between lines to be drawn due east from the points, where the afore- said boundaries between Nova Scotia, on the one part, and East Florida, on the other, shall respectively touch the Bay of Fundy, and the Atlantic Ocean ; excepting such i^idiids us now are, or heretofore have been, within tlie limits of the said Province of Nova Scotia." Doubts having arisen what river was truly intended under the name of the Uiver St. Croix, mentioned in the aforesaid treaty of peace, and forming a part of the boundary therein described, that question was re- ferred, by virtue of the fifth article of the treaty of 1794, to the final decision of Commissioners to be appointed in the manner therein pre- scribed : And both parties agreed, by the said article, to consider such decision as final and conclusive, so as that the same should never there- after be called into question, or made the subject of dispute or difference between them. The Commissioners appointed in conformity with the said fifth arti- cle of the treaty of 1794, did. by their declaration of October 25th, 1798, decide, a river called <' Scoodiac," and the northern branch of it (called *' Cheputnaticook,") to be the true River St. Croix intended by the treaty of peace, that its mouth was in the Bay of Passamaquoddy at a place called Joe's Point, and its source at the northernmost head spring of the northern branch aforesaid. By the treaty of peace concluded at Ghent, on the 24th of December, 1S14, it was agreed to provide for a final adjustment of the boundaries described in \he treaty of 1783, whiuh had not yet been ascertained and determined, embracing certain islands in the Bay of Fundy, and the whole of the boundary line from the source of the River St Croix to the most north-western point of the Lake of the Woods. It is provided by the fifth article of the said treaty as follows ; « WfiEREAS neither that point of the Highlands lying due north from the source of the River St. Croix, and designated in the former treaty of peace between the two Powers, as the north-west angle of Nova Scotia, nor the north-western most head of Connecticut River, has yet been as- certained ; and whereas that part of the boundary line between the do- minions of the two Powers, which extends from the source of the River St. Croix, directly north, to the above-mentioned north-west angle of Nova Scotia; thence, along the said Highlands which divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, to the north-western most head of Connecticut River ; thence, down along the middle of that river, to the forty -fifth degree of north latitude ; . thence, by a line due west, on said latitude, until it strikes the River Iroquois or Cataraquy, has not yet been surveyed ; it is agreed that for those several purposes, two Commission- ers shall be appointed, sworn, and authorized to act, &c Mi li'! .1: 10 INTRODUCTION. . . . . . . The said Commissioners shall have power to as^ certain and determine the points above-mentioned, in conformity with the proviaion$ of the aaid treaty of peace of 1783, and shall cause the boundary aforesaid, from the source of the Kiver St. Croix to the River Iroquois or Cataraquy, to be surveyed and marked according to the said provisions. The said Commissioners shall make a map of the said boundary and annex to it a declaration under their hands and seals, cer- tifying it to be the true map of the said boundary, and particularizing the latitude and longitude of the north-west angle of Nova Scotia, of the northwestern most head of Connecticut River, and of such other points of the said bounoary as they may deem proper. And both parties agree to consider such map and declaration as finally and conclusively fixing the said boundary." The same article further provides for the reference to a friendly Sov- ereign or State, in the event of the Commissioners diflfering, or of both, or either of them, refusing, declining, or omitting to act. The Commissioners appointed in conformity with the said fifth arti- cle, after sitting near five years, could not agree on any of the matters referred to them, nor even on a general map of the country exhibiting the Boundaries respectively claimed by each party. They accordingly made separate report'^ to both Governments, stating the points on which they differed, and the grounds upon which their respective opinions had been formed. The case having arisen which rendered it necessary to refer the points of diflerence to a friendly Sovereign or State, the two Powers found it expedient to regulate the proceedings, and make some further provision in relation to the said reference ; and, on the a9th of September, 1827, concluded a Convention to that effect, which amongst other provisions, stipulates, viz : ARTICLE II. The reports and documents, thereunto annexed, of the Commission- ers appointed to carry into execution the fifth article of the Treaty of Ghent, being so voluminous and complicated, as to render it improba- ble that any Sovereign or State should be willing or able to undertake the ofiice of investigating and arbitrating upon them, it is hereby agreed to substitute for those reports, new and separate statements of the respec- tive cases, severally drawn up by each of the contracting Parties, in such form and terms as each may think fit. The said statements, when prepared, shall be mutually communicated to each other by the contracting parties, that is to say : by the United States to His Britannic Majesty's Minister or Charge d'Affaires at Wash- ington, and by Great Britain to the Minister or Charg^ d' Affaires of the United States at London, within fifteen months after the exchange of the ratifications of the present Convention. After such communication shall have taken place, each Party shall have the power of drawing up a second and definitive statement, if it think fit so to do, in reply to the statement of the other Parly, so com- municated ; which definitive statements shall also be mutually commu- nicated, in the same manner as aforesaid, to each other, by the contract- INTRODUCTION. 11 ing Parties, within twenty-one mouths after the exchange of the ratifi- cations of the present Convention. ARTICLE III. Each of the contracting parties shall, within nine months after the exchange of ratifications of this Couveation, communicate to the other, in the same manner as aforesaid, all the evidence intended to be brought in support of its claim, beyond that which is contained in the reports of the Commissioners, or papers thereunto annexed, and other written douments laid before the Commission, under the fifth article of the Treaty of Ghent. Each of the contracting Parties shall be bound, on the application of the other Party, made within six months after the exchange of the ratifi- cations of this Convention, to give authentic copies of such individu- ally specified acts of a public nature, relating to the territory in ques- tion, intended to be laid as evidence before the Arbiter, as have been issued under the authority, or are in the exclusive possession of each Party. No maps, sun'eys, or topographical evidence of any description, shall be adduced by either Party, beyond that which is hereinafter stipulated, nor shall any fresh evidence of any description, be adduced or adverted to, by either Party, other than that mutually communicated or applied for, as aforesaid. Each Party shall have full power to incorporate in, or annex to, either its first or second statement, any portion of the reports of the Commis- sioners or papers thereunto annexed, and other written documents laid before the Commission under the fifth article of the Treaty of Ghent, or of the other evidence mutually communicated or applied for as above provided, which it may think fit. ARTICLE IV. The map called Mitchell's map, by which the framers of the Treaty of 1783 are acknowledged to havo regulated their joint and official pro* ceedings, and the map A, which has been agreed on by the contracting Parties, as a delineation of the water courses, and of the boundary lines in reference to the said water courses, as contended for by each Party respec- tively, and which has accordingly been signed by the above named Plenipotentiaries, at the same time with this Convention, shall be an- nexed to the statements of the contracting Parties, and be the only maps that shall be considered as evidence, mutually acknowledged by the con- tracting Parties, of the topography of the country. It shall, however, be lawful for either Party, to annex to its respective first statement, for the purposes of general illustration, any of the maps, surveys, or topographical delineations, which were filed with the Com. missioners under the fifth article of the Treaty of Ghent, any engraved map heretofore published, and also a transcript of the above mentioned map A, or of a section thereof, in which transcript each party may lay down the highlands, or other features of the country, as it shall think fit ; the water courses and the boundary lines, as claimed by each party, remaining as laid down in the said map A. But this transcript as well as all the other maps, surveys, or topo> graphical delineations, other than the map A, and Mitchell's map, in- >:.!: i I i m ill'! i' W INTRODUCTION. tended to be thus annexed, by either Party, to the respective statements, ihall be cominuaicated to tho other Party, in the same manner as afore- said, within nine months ai'ter the exchange of the ratifications of this Convention, and shall be subject to such objections and observations, as the other contracting Party may deem it expedient to malte thereto, and shall annex to his first statemeut^ either in the margin of such transcript map or maps, or otherwise. [Where map A and M itchell's map difTer one from the other, they must of course, be considered as evidence mutually ackuowledged ; the map A, of the actual topography of the country, and Mitchell's map, of the topography as it was understood by tho framers of the treaty of 1783. The said map A, was prepared at London, in the year 1S27, under the superintendence of the British and American plenipotentiaries, by the late Mr. Tiarks, the astronomer employed on the part of Great Biitain in the proceedings of the joint Commission under the Treaty of Ghent. The King of the Netherlands having been selected by the two Gov- ernments as Arbiter, each laid before him, nx conformity with the pro- visions of that Convention, all the evidence intended to be brought in support of its claim and two separate statements of the respective cases. Those four statements, which embrace the arguments at large of each party respectively, have been printed but not published. Whichsoever Highlands might be decided by the commissioners, or by the Arbiter, to be the highlands contemplated by the treaty of 1783 ; the north west angle of Nova Scotia is expressly prescribed by that treaty to be on the Highlands, and the boundary to extend from that angle, along the said Highlands which divide, &c., to the north- western- most head of Connecticut River. According to the award of the King of the Netherlands, the termina- tion of the line drawn due north from the source of the River St. Croi::, that is to say, the northwest angle of Nova Scotia, is placed in the bed (le milieu du thalweg) of the River St John : and the boundary, from that point to the southwestern most source of the River St. Francis (distant about 76 miles in a straight line) is along the bed of the Rivers St. John and St. Francis. Neither the angle, nor the boundary are on, and along Highlands according to the provisions of the treaty of 1783 ; and the award was not therefore binding on either Great Britain or the United States. His Majesty the King of the Netherlands seems in- deed to have viewed it in the same light, and only as a declaration of what he considered, under all the circumstances of the case, as an equit- able division of the disputed territory. For he does not decide what is the north west angle, nor that the proposed Une is, or must be consi- dered as the boundary, (terms used by him in retbrence to the northwest- ernmost head of the Connecticut River,) but that it will be attilable, or, convenient, (il conviendra) to adopt, for the limit of the two states, the line as above stated. However disposed the Government of the United States might have been to acquiesce in any decision, avowedly declared by the Arbiter to be in conformity with the treaty of 1783, that is to say, determining and not varying the boundaries designated by that treaty ; it had not the power voluntarily to vary those boundaries without the consent of the State affected by such alteration. Against that alteration, the State of • INTRODUCTION. Btatementflf er aa afore- oiiB of this iservatioM) thereto, and \i transcript ', thoy must 1 ; the map nap, of th« of 17S3. S27, under ntiaries, by t of Great the Treaty e two Gov- ith the pro- brought in ctive cases, rge of each sioners, or y of 1783 ; y that trea^ that angle, 38tern-most Maine untered a solemn protest bv their resolutions of IPth January, 1632. And the Senate of the United States did accordinjly refuse to give its assent to the award.] The Statements of the case, respectively laid by the two Powers be- fore the King of the Metherlanda, are those which, in the following essay, are called the "American" and the "British" Statements. Subsequent to the treaty of 1783, the Province of Nova Scotia, which at the date of that treaty, was contiguous to the United States, has been divided, by the British Government, into two Provinces ; the south- eastern part, or peninsula, retaining the name of Nova Scotia, and the north-western part, which is that adjacent to the United States, hav- ing been erected into a new Province, by the name of New Bruns- wick. The British Province of Quebec, as it was called at the date of the treaty of 1788, has also been since divided into two Provinces, viz : Upper Canada and Lower Canada ; this last being that which is con- tiguous to the United States, as far west as the Boundary now in discus- sion extends. On the other hand, that portion of the State of MasBachusetts, lying east of the Slate of New Hampshire, which was, at the date of the treaty of 1783, known by the name of Province of Maine, and extended east- wardly as far as the then Province of Nova Scotia, has been since erect- ed into a State by the name of Maine, admitted as such into the Union, and is now contiguous to the British Provinces of New Brunswick and Lower Canada. le termina- St. Croi:£, n the bed ary, from cis (distant livers St ry are on, of 1783 ; lain or the seems in- aration of s an equit- ecide what be consi- northwest- litable, or, states, the light have Arbiter to ining and not the 3ut of the State of §1. American "^ine. The River Scoodiac having been determined to be the true River St. Croix, a monument has been erected at its source, which is mutually acknowledged as the point of departure, whence the boundary is a due north line to the highlands designated by the treaty of 1783. What are the highlands thus designated, is the question at issue. As the description of the boundary line of the United States, in the treaty of 1783 commences, so also it terminates, at the north-west angle of Nova Scotia. In order, therefore, to include the whole line from the River St. Croix to the sources of the Connecticut River, it is neces- sary to bring together and connect the former and the latter clause de- scriptive of the Boundary, in the second article of the treaty. They are as follows, viz : " From the north-west angle of Nova Scotia, viz : that angle which is formed by a line drawn due north from the source of St. Croix River 2 is :u , 1 14 Terrna of the Treaty* to the Highlands ; along the said Highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the P'^rth-westernmost head of Connec- ticut River, hi^i by a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence." In the first clause, the due north line terminates at the Highlands generally ; but in the latter clause, the same north line is declared to extend to the aforv^said highlands, which divide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence. And moreover, in the first clause, the highlands at which the due north line terminates are, by the word sat'cl, which almost immediately follows, identified with the highlands which divide the rivers as aforesaid. The north-west angle of Nova Scotia is therefore defined by the treaty, as being formed by the intersection of a line drawn due north from the source of the R iver St. Croix with the highlands aforesaid : and the summit of that angle is at the point of intersection, and must neces- sarily be on the very highlands, which divide the rivers that empty them- selves into the River St. Lawrence, from those which fall into the Atlantic Ocean. The angle formed by the due north line with the Highlands describ- ed by the treaty, which extend from the termination of that due north line to the north-westernmost head of Connecticut River, is the north- east angle of the United States. The north-west angle of Nova Scotia is necessarily formed by the western boundary of that Province, which divides it from the United States, and by its northern boundary which, extending eastwardly from the termination of the due north line, divides it from Canada. Those two angles have a com;non side, viz : the due north line ; and the termination of that line is the common summit of both. The object of the treaty was to declare with precision the boundaries between the United States and Great Britain. But the boundary be- tween Nova Scotia and the other dominions of Great Britian in that quarter, depended on the acts of Great Britain alone, and was a subject foreign to the purposes of the treaty. The description of the boundary of the United States would have been, without any reference to the north-west angle of Nova Scotip as complete and inteliigible by defining it as follows, viz : " East by a line to be drawn along the middle of the River St Croix, from its mouth in the Bay of Fundy, to its source ; and from its source, directly north, to the aforesaid Highlands, which divide the rivers that fall into Ihc Atlaa- r American Line, 15 le rivers le which Connec- loDg the fundy to ighlands ise which [ighlands 3clared to t fall into iawrence. due north ly follows, id. ed by the due north isaid: and lust neces- npty ihem- ili into the Is describ- ue north the north* med by the 16 United ardly from • I line ; and )oundaries jndary be- ian in that a a subject would have Scotip as t by a line s mouth in y north, to the Atlan- tic Ocean from those which fall into the River St. Lawrence ; and thence, along the said Highlands which divide, &c., to the north-western most head of Connecticut River." The only object which could he had in view, in mentioning the north-west angle of Nova Scotia in the treaty, was to refer to a point, the position of which had been previously designated by the public acts of Great Britain. Whether the place of beginning was, or was rot, the uorth-west angle of Nova Scotia, vi'as, unless for the sake of reference to a point previously designated, wholly foreign to the object of the treaty. The only previous public British acts, in which the limits of Nova Scotia were laid down, are the grant of that P'. vince to Sir William Alexander in 1621, and the commissions of its governors, from the year 1763 to the year 1782. The difference between the limits of the grant, and those described in the commissions, will be adverted to hereafter. And in those commissions, Nova Scotia is declared to be bounded to the westward, by a line drawn from Cape Sable^ across the en- trance of the Bay of Fundy, to the mouth of the River St. Croix ; by the said river to its source ; and by a line drawn due north from thence to the southern boundary of our colony of Quebec, (a) The southern boundary of the Province, Colony or Government of Quebec is declared, by the Royal proclamation of 1763, and by the Quebec act of 1774, to be, along the Highlands which divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the sea. The north-west angle of Nova Scotia thus previously described, is necessarily that to which the treaty refers : and the dividing Highlands designated by the treaty are thereby identified, with those declared by the acts aforesaid, to be the southern boundary of the Province of Quebec. The precise spot, where the north-west angle of Nova Scotia would be found, was not known at the date of the treaty. It could not be as- Cv3rtained, until it had been determined which river was the St. Croix, and which was the source of that river contemplated by the treaty ; nor until the due north lino from that source had been surveyed, as far as the sources of p river emptying itsalf into the River St. Lawrence. When, therefore, the north-west angle of Nova Scotia is said, in the treaty, to be formed, &c. this expression must be understood, as prescrib- ing tl" rules by which, (and therefore the spot where,) it would be found. (a) In the commission of Montague Wilmot, dated 2l8t of November, 1763, the following proviso is added after the words, to the westward, viz : " although our said Provincfi has anciently extended and does of right extend as far as the River Pentagoet or Penobscot." The proviso is omitted in all the subsequent com- miBsion*. : ! 'ii: P: III 11 I 111 16 Terms of the Treaty, All those objects have now been accomplished ; and from that monu- ment at the source of the St. Croix, which has been determined to be the point of departure, the due north line has been aunreyed one hundred and forty-four miles, to the source of a stream which falls into the River St. Lawrence. According to the express words of the treaty, the boundary line through its whole extent, from the north-west angle of Nova Scotia, to the north-western most head of Connecticut River, must be along the highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean. The words " highlands which divide the rivers," are inseparable ; the term « Highlands " in its general sense, and undefined by any adjunct, being one of relative import and indeterminate signification. Had the term " Highlands," been used alone in the treaty, there would have been no certain criterion by which to ascertain what were the highlands intended. And it would have been impracticable, amongst the different lines which mighi be suggested through a country, inter- sected by numerous broken ridges, to decide which was entitled to pre- ference. It is the property of dividing the rivers, therefore, which affixes a specific and precise meaning to the general expression of " Highlands ;" and which determines both the northwest angle of Nova Scotia and the Boundary line extending thence to the north-western most head of Con- necticut River It is that property, (what, in French, is called, " Point de Partage,") which constitutes the essence of the treaty definition. Avoiding accordingly the words, " mountains," « hills," or any such as might have been derived from, or indicative of, the peculiar nature of the ground, the general expression << Highlands" was adopted, as ap- plicable to any ground, (whatever might he its nature or elevation,) along which the line dividing the rivers should be found to pass : the fact, that the ground dividing rivers is necessarily more elevated than those rivers and the country adjacent to their banks, being sufiicient to entitle it to the designation of " Highland," in relation to those rivers and to that coimtry. No Highlands can divide the rivers that fall into the Atlantic Ocean from those '"hich fall into the River St. Lawrence, but those Highlands in which the rivers thus designated, or their tributary streams, have their respective sources, and thence flow in different directions, to the Ocean and to the St. Lawrence, respectively. The map A. shows that there are, along the line drawn due north from the source of the River St. Croix, but two places, which divide rivers thus flowing in different di- rections^ and in which those rivers have their respective sources. The due north line from the source of the River St. Croix, crosses American Line, 17 iiat monu- I to be the ndred and River St. idarj line Scotia, to along the 3 into the cean. irable ; the ly adjunct, :here would t were the e, amongst ntry, inter- tled to pre- h affixes a [ighlands ;" tia and the lad of Con- ed, « Point nition. 3r any such iar nature pted, as ap- elevatiou,) pass : the 3vated than sufficient to hose rivers ntic Ocean Highlands , have their the Ocean that there River St. Afferent di- ces, ix, crosses no other rivers, for a distance exceeding ninety miles, but tributary streams of the River St. John, and that river itself. There is not along the line, through the whole of that distauce, a single point that divides rivers falling into the Atlantic Ocean from those falling into the River St. Lawrence, or that divides any other water courses what- ever, but such as fall into one and the same river, viz : the River St. John. At about ninety seven miles from the source of the River St. Croix, the due north line reaches a ridge or Highland which divides tributary streams of the River St. John, which falls into the Bay of Fundy, from the waters of the River Ristigouche, which falls through the Bay des Chaleurs, into the Gulf of St. Lawrence. And, in its further north course, the said line, ailer crossing several upper branches of the River RisMgouche, reaches, at the distance of about 140 miles from the source of I e River St. Croix, the Highlands which divide the waters of the said River Ristigouche from the tributary streams of the River Metis, which falls into the River St. Lawrence. It is clear that there is no other possible choice but between those two places, and that the north- west angle of Nova Scotia must, of necessity, be found at the intersec- tion of the said due north line with, either ihe Highlands which divides the waters of the River St. John from those of the River Ristigouche, or the Highlands which divide the waters of the River Ristigouche from those of the River Metis ; since there is no other point, through the whole course of the due north line, which divides any other waters but such as empty themselves into the same river. The selection between those ♦wo dividing Highlands evidently de- pends on what is meant, according to the treaty of 1783, by rivers that empty themselves or fall into the River St. Lawrence, and . ^ rivers which fall into the Atlantic Ocean. The treaty recognizes but two classes of rivers. The first class em- braces only the rivers falling into a river, designated by its specific name, and cannot be construed to include any rivers that do not empty them- selves into the river thus specially designated. All the rivers, met by the due north line, which do not actually empty themselves into the River St. Lawrence, according to its known limits, are, by the treaty, considered as falling into the Atlantic Ocean. The limits of the River St. Lawrence are defined by the royal procla- mation of 1763, in which the western boundary of the Government of Quebec is described, as crossing the mouth of the River St. Lawrence, from Cape Rosiers to the Labrador Coast. The Bay des Chaleurs being south of Cape Rosiers, the River Ristigouche does not fall into the River St. Lawrence. The north-west angle of Nova Scotia is therefore, as the United States 18 Terms of the Treaty. ml ill! ! 'i : , I . I . -it ! iiiiiii] ' insist, and have uniformly insisted, that spot on the due north line, (about 140 niiles from the source of the River St. Croix,) where that line is intersected by the highlands, which there divide the sources of a branch of the River Metis which empties itself into the River St. Law- rence, from the sources of a branch of the River Ristigouche, which falls through the Bay des Chaleurs and the Gulf of St. Lawrence, into the Atlantic Ocean. And the boundary line extends, as the United States insist, and have uniformly insisted, through its whole extent, from the angle above described, to the north-westernmost head of Con- necticut River, along the highlands which divide the sources of the several rivers (from the Metis to the St. Francis) that empty themselves into the River St. Lawrence, from the sources of the tributaries of the Rivers Ristigouche, St. John, Penobscot, Kennebec and Connecticut, all which, either mediately or immediately, fall into the Atlantic Ocean. That line is delineated on the map A ; and it is believed that a single glance at that map, comparing it with the words of the treaty, will in- stantaneously lead to the same conclusion. It is denied on the part of Great Britain, that the boundary thus claim- ed by the United States, is that which is prescribed or intended by the treaty principally, if not exclusively, on two grounds. 1st. That the Bay of Fundy, as mentioned in the treaty of 1783, is, (as well as the Gulf of St. Lawrence,) intended to be separate and dis- tinct from the Atlantic Ocean ; and that the River St. John, which falls into the Bay of Fundy, (as well as the River Ristigouche which, through the Bay des Chaleurs, falls into the Gulf of St. Lawrence,) is intend- ed, on that as well as on separate grounds, to be excepted from that class of rivers which are described in the treaty as falling into the At- lantic Ocean: 2dly. That the ground, over which the boundary line claimed by the United States does pass, has neither the mountainous character, nor the continuous elevation necessary to entitle it to the designation of "high- lands," as intended^ by the treaty ; and therefore, that the Highlands, claimed on the part of the United States, conform neither in position nor character, to the conditions impose3 on them by the treaty. From those premises, and with reference particularly to the asser- tion, that the River St. John must be excepted from that class of rivers described in the treaty as falling into the Atlantic Ocean, i' 's inferred, on the part of Great Britain, that, consequently the Highlands described in the treaty must lie to the southward of that River. And it is further affirmed, that the Highlands, claimed, on the part of Great Britain, a& those designated in the treaty of 1783, conform, in every particular, to the conditions imposed on them by that treaty. Supposing, that the objections raised against the boundary line Bniiah Line. 19 )rth line, Inhere that iroes of a St. Law- /hich falls nee, into le United :tent, from of Con- ies of the hemaelves •ies of the tnnecticut, tic Ocean, tat a single y, will in- thus claitn- ided by the )f 1783, is, te and dis- which falls ch, through is intend- from that to the At- |med by the ter, nor the of"high- |Highlands, [n position the asser- b of rivers 's inferred, described |t is further (Britain, a^ jirticular, to idary Une . claimed by the United States could be sustained, it would not at all fol- low, as a matter of course, that the Highlands described in the treaty must lie to the southward of the River St. John, or that the boundary line, or Highlands, claimed on the part of Great Britain, conform with the conditions imposed on them by the treaty. And before those ob- jections against the American line are discussed, it will be necessary to examine, along which Highlands the British line is placed, and on what arguments the claim to that line is founded. § 2. British Line. The north-west angle of Nova Scotia, is, by the treaty, declared to be « formed by a line drawn due north frotr. the source of St. Croix River, to the Highlands." Immediately following the last mentioned words, viz : " to the High- lauds," the words (in reference to the boundaries,) are " along the said Highlands, which divide those rivers that enr.pty themselves into the St. Lawrence, from those which fall into the Atlantic Ocean." The words, " the said Highlands," identify, therefore, the Highlands at which the due north line terminates, with the Highlands which divide the rivers specified by the treaty. The east boundary of the United States, is by the treaty declared to be " a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy, to its source ; and from its source, di- rectly north to the aforesaid Highlands which divide the rivers that fall into the Atlantic Ocean, from those which fall into the River St. Law- rence." Thus the line drawn due north, or directly north, from the source of St. Croix River, is, in two different clauses of the treaty, declared to ex- tend to, and to terminate at, the Highlands which divide the rivers de- signated by the treaty. That line is that which forms the north-west ra- gle of Nova Scotia. The northern termination of that line, and tHe summit of that north-west angle are identic. It appears impossible to have devised expressions that could, with greater precision, have deter- mined the position of the north-west angle of Nova Scotia, as being that point on the Highlands which divide the rivers specified by the treaty, where the said Highlands are intersected by the line drawn due north from the source of the River St. Croix. By the fourth article of the convention of 1827, the map A, signed by II 30 TeiiiM of the Treaty, I mil I' Mill i!| I''' iilp • r the plenipotentiaries was agreed on as a delineation of the watercourses, and of the boundary lines in reference to the said water courses, as con- tended for by each party respectively. The point B, on the said map A, is declared on the map itself, to be the north-west angle of Nova Scotia, as contended for by Great Britain ; and the red colour is likewise declared to be, that which denotes the boundary Hue as claimed by her. That such are respectively, according to the treaty of 17S3, the north-west angle of Nova Scotia and the boun- dary line between the two countries, has uniformly been affirmed on the part of Great Britain, from the year 1S18, when her claim to Ihat extent was first disclosed, to the present year. That spot and that line are the same, which the British Commission- er under the treaty of Ghent did, in Ap.-il, 1822, declare to conform with the said treaty ; the line being, as he says, that which is described by the red line on a certain general map made by His Majesty's principal surveyor. That point B, the north-west angle of Nova Scotia, as contended for on the part of Great Britain, is situate at or near Mars Hill, on the due north line, about forty miles north from the source of the River St. Croix, and, as the British agents say, on the first Highland which that line encounters. Mars Hill, so far from being a Highland, which divides the rivers that fall into the Atlantic Ocean, from those which fall into the River St. Lawrence, is, at least, one hundred miles distant in every direction, from any of the sources of any of the rivers that empty themselves into the River St Lawrence ; and it divides no other rivers, but Gooscquick River, from the River Fresque Isle ; both which are tributary streams of the River St. John, into which they empty themselves, a few miles east of the said due north line. It is therefore contended on the part of Great T ritain, that the north- west angle of Nova Scotia, described by the treaty as being formed by the due north line, and the Highlands which divide the rivers that fall into the River St. Lawrence, from those which fall into the Atlantic Ocean, may be placed, not on those Highlands, but on a Highland, or place, which does not divide, from each other, the rivers described by the treaty, but only rivers that fall into one and the same river, viz., the River St. John ; a river which, as the United States assert, falls into the Atlantic Ocean, but is considered by Great Britain, as falling neither into the Atlantic Ocean, nor into the River St. Lawrence. The boundary between the two countries is declared, by the treaty of 1783, to be, from the north-west angle of Nova Scotia as above de- scribed, along the Highlands which divide those rivers that empty them- ; British Line. 81 courseS) , as con- jlf, to be Britain ; lotes the ccording he boun- ed on the lat extent imissiou- form with cribed by principal tended for in the due River St. which that rivers that River St. direction, lelves into ooscquick y streams few miles tie north- brmed by that fall Atlantic ghland, or )ed by the viz., the falls into ng neither e treaty of above de- ipty them- ! selves into the River St. Lawrence from those which fall into the At- lantic Ocean, to the north-westernmost head of Connecticut River. From that source, as claimed by Great Britain, and designated on map A by the letter C, to a spot called Metjarmette Portage, which di- vides the source of the north western most branch of Penobscot River, from the source of a tributary stream of the River Chandiere, which falls into the River St. Lawrence, the boundary claimed on the part of Great Britain, denoted by the red line on map A, extends along the Highlands which divide the sources of several rivers that fall into the River St. Lawrence, from the sources of seveial tributary streams of the Rivers Connecticut, Kennebec, and Penobscot which fall into the Atlantic Ocean. It is only for that portion of the boundary, or about eighty miles in a straight line, that the British, which there coincides with the American line, fulfils the conditions of the treaty. From Mars Hill, the assumed north-west angle of Nova Scotia, the British line, till it reaches the nearest or north-easternmost source of the Penobscot, divides, from each other, no other rivers than some tributary streams of one and the same river, viz : the St. John. And thence to the source of the River Chandiere at the said Metjarmette Portage, it di- vides no other rivers, than the sources of the tributary streams of the Penobscot, from those of the St. John. From Mars Hill to the sources of the Chandiere, the British line, through the whole distance, or about one hundred and fifteen miles in a straight line, instead of dividing, in conformity with the express and clear words of the treaty, rivers falling into the River St. Lawrence from rivers falling into the Atlantic, divides no other rivers, than rivers falling into the Atlantic Ocean, from rivers falling also into the Atlantic Ocean. Or, according to the suggestions of the British agents, the British line for the whole of that distance, divides no other rivers, than rivers falling into the Bay of Fundy, (S*. John) from rivers falling into the Bay of Fundy and the Atlantic Ocean. (St. John and Penobscot.) It is contended by Great Britain, that, notwithstanding the boundary is expressly declared, by the treaty, to extend from the northwest angle of Nova Scotia to the north-westernmost head of Connecticut River, along the Highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean ; and although these words, from, along, and to, are the clearest and strongest which could have been selected, for the purpose of declaring, that the Boundary thus described must, through its whole extent, from its beginning to its termination, be along the said Highlands ; yet that clear and imperative description may be construed to mean ; that the line may, for more than one half of its extent, be along ground, which is acknowledged not to divide the rivers thus described by the treaty, 3 •i t li f. i it'.' 'I 99 Tej'HW of the Treaty ':! I but to divide only rivers acknowledged not to be those contemplated and described by the treaty. It has been stated that, (independent of the indispensible condition, that they shall divide certain rivers, imposed on the highlands by the ex- press terms of the treaty,) it is contended on the part of Great Britain, that the term, " Highlands," also implies a continuous visible elevation. The first condition determines the position of the highlands : the second may be called their character. Supposing for the moment, that this last condition is essential ; and admitting that the British line, from the due north line to the source of the Chandiere, is on highlands of the character claimed for them : it is nevertheless undeniable, that the highlands thus asserted to conform with the conditions of the treaty, do not in position conform with its ex- press terms. The assertion, that the point of departure may be placed on a spot, more than one hundred miles distant from that expressly prescribed by the treaty, and that more than one half of the boundary may be, on highlands dividing rivers acknowledged not to be those described by the treaty, had its origin in the unfortunate choice of the officers, selected on the part of Great Britain, as Agent and Commissioner, in conformity with the treaty of Ghent. But, that the British Government should have adopt- ed and continue to sustain a pretended interpretation, so obviously con- tradictory of the express terms of the treaty, is wholly incomprehensi- ble. The inferences drawn from some general expressions in the pream* ble of the treaty, and from presumed intentions ascribed to the negotia- tors, will be hereafter adverted to. The terms of the treaty, which pre- scribe the position of the north-west angle of Nova Scotia and of the highlands, are now the subject of discussion : and, when the terms are clear and explicit, an appeal to supposed intentions is inadmissible. * The first general maxim of interpretation is, that it is not permit- ted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures, in order to restrain or extinguish it, is t j endeavor to elude it. If this dangerous method be once admitted, there is no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate, all this shall be of no use, if it be allowed to search for foreign reasons in order to maintain what cannot be found in the sense it naturally pre< sents." (Vattel, Book 2. ch. 17, § 263.) Briiiah Line. n )lated and condition, by the ex- it Britain, elevation. :he second atial ; and 5 source of hem : it is conform with its ex- i spot, more ibed by the a highlands 1 treaty, had a the part of ty with the have adopt- viously con- Dmprehensi- 1 the pream- the negotia- , which pre- and of the le terms are lissible. not permit- n an act is anifest, and sense which conjectures, it. If this it will not [parts of the irminate, all reasons in laturally pre- The attempts made to reconcile the British claim with the terms of the treaty will now be examined. The British Commissioner, under the Ghent commission, says, that the treaty directs « that the due North line shall extend to the highlands, evidently meaning the ^trs^ highlands corresponding with the subsequent description, at which that line should arrive ; for if the framers of the treaty had other highlands in contemplation, further north, they would have excluded the first highlands, by an express exception of them." And, in the first British statement, Mars Hill is said to be with pro- priety claimed by Great Britain, as the point of departure on the high- lands, amongst other reasons, on the ground of that point being the nearest real elevation met by the due north line. The framers of the treaty, by describing the highlands as dividing the rivers therein designated, did exclude all other highlands, as well the first highlands which the due north line might meet, as any other. And the suggestion is simply to substitute the words <' the first highlands, &c." for the highlands which divide rivers. The United States insist that according to the treaty, the boundary line, through its whole extent, from the north-west angle of Nova Scotia, to the north-westernmost head of Connecticut, must be along the high- lands which divide the rivers designated by the treaty. The manner in which the British agent, under the Ghent Commis- sion, attempted to evade that provision, consisted in suggesting various readings of the text. 1. The words used in the treaty, viz : « North to the highlands" are, he says, " evidently to be understood as intending that the North line should terminate whenever it reached the highlands, which, in any part of their extent, divide the waters mentioned in the treaty." 2. What he calls the intention of the treaty, will, he says, " be liter- ally effectuated, by a very small variation of the expression actually made use of in this regard, namely, by describing the second line form- ing this angle in the following words, that is to say ; along the said high- lands where they divide those rivers, &c. the expression actually made use of is, along the said highlands tohich divide those rivers." 3. « The true intention of the treaty would clearly be ascertained by the following obviously plain and natural, and nearly literal, construction of its phraseology, namely ; — It is hereby agreed and declared that the following are and shall be the boundaries of the United States, viz : from the North-west angle of Nova Scotia, viz : that angle which is formed by a line drawn due North from the source of St. Croix River to the line q/* the highlands, along the said highlands which divide," &c. 4. Finally the Agent proposes to reverse the description of the boun- ilii 9 ^ ill I I III l,^'!l %4 Terma of the Treaty. dary. « Let then the tracing of the boundary in this quarter be made) from the north-westernmost head of Connecticut River, along the high- lands which divide those rivers, &c. to the north-west Angle of Nova Scotia, viz : that angle which is formed by aline drawn due north from the source of St. Croix River to the highlands." In this last version, the British Agent has not interpolated new words, but besides reversing the line, he has omitted the word satti, which iden- tifies the highlands which divide the rivers, &c. with those to which the due North line is declared to extend. It is not necessary to inquire whether the alterations thus suggested would answer the purpose for which they are intended. They have been adverted to, only to show the various attempts of the British Agent} all of which consist in an actual alteration of the expressions of the treaty. But the plea principally insisted upon, is, that the highlands, said to extend from the source of the Chandiere to Ma's Hill, and which are claimed on the part of Great Britain as part of the boundary, although they do not divide the rivers described and contemplated by the treaty, are a continuation of, or connected toith those highlands, which, from the source of the Chandiere to that of the Connecticut, are acknowledged by both parties, to be highlands which divide the rivers contemplated and prescribed by the treaty. The British Commissioner, under the Ghent Commission, describes the boundary claimed on the part of Great Britain, as a line, <* running from the Connecticut, along the highlands acknowledged by both par- ties ; such lino being continued along the highlands in that quarter, in such manner as to leave all the sources of the Kennebec and Penobscot south of such line and witliin the United States, to Mars Hill." And he adds ; " Now what does the word, ahmg, in its ordinary sig- nificatiou import \ certainly a continuation of those highlands, in which continuation will be found highlands which divide the rivers, &c. It is not contended, in the British Statements, that the words, alongy and, conlimiationf are synonymous. The terms, "continuation," " con- nection," "highlands which connect themselves," are indiscriminately used. Any direct discussion of the terms of the treaty, such as had been hazarded by the former British Commissioner, is avoided. But it is throughout affirmed, that it is not necessary according to the terms of the treaty, that the boundary should, through its whole exteiit, be along Highlands which actually divide rivers emptying themselves into the River St. Lawrence, from those that fall into the Atlantic Ocean. In describing a boundary line, there are three requisites ; the point at which it begins, that at which it terminates, and the course or direc tion which it follows between those two points. The most appropriate m I British Line. »$ be made, the high- of Nova arth from ew words, hich ideu- which the suggested rhey have ish Ageut, DOS of the ds, said to which are y, although the treaty, ?h, from the mowledged mtemplated 1, describes « running y both par. quarter, in Penobscot • rdinary sig- is, in which &c. ords, along-, on," " con- icriminately uch as had led. But it \e terms of it, be along es into the cean. the point :se or direc- appropriate words, those in most common use for that purpose, are, /rom, lo, and along, or by : from the point at which the line begins ; to the point at which it terminates ; along the direction, or by the course which it follows. The word /rom, both from its etymology and uniform use when ap« plied to place, is that which most precisely designates beginningy and excludes any possible interval, between the point to which it refers, and that where the course or direction assigned to the line, does b^gin. The word along, as applied to such course or direction, means the whole length, following the course of, keeping company withy means nothing else, and is never used in any other sense. The treaty having declared the boundary, from the North-west Angle of Nova Scotia, to the North-westernmost head of Connecticut River, to be along the highlands which divide the rivers, &c. that boundary cannot, without a direct violation of the express terms of the ^treaty, leave the said highlands, at any place, or for any distance, between that angle and that head : it must, through its whole length, between those two points, keep company with and follow the course of those highlands. What precludes any cavil respecting the obvious meaning of those emphatic words iu the treaty, is, that there was, iu that respect, a defect in the public acts of Great Britain, from which the description of the line was borrowed ; and that that defect was corrected by the framers of the treaty, who placed, in most explicit terms, the beginning and the termination of the boundary line, on the actual dividing highlands. According to the Proclamation of 1763, the line, crossing the River St. Lawrence and the Lake Champlain in forty-five degrees of north latitude, passes along the highlands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the sea, and also along the North coast of the Bay des Chaleurs, &c. This description is vague, inasmuch as it does not prescribe the manner in which the line is to pass, either from the fortyvithin the meaning of the treaty, a*: Atlantic river, the Author of the British Statement says that, had not the negotiators intended to give the sense he accribes to the words "to divide," they would have used, when speaking of the rivers to be divided,, a I'nore comprehensive term than "Atlantic Ocean " Tow the use of that, o\- any other term, in order to designate the por- tion of the Sea into which the rivers to be divide ' empty themselves, could possibly affect the meaning of the word "to divide," it is i.npos- sibleto divine. Yet, this is the only argument adduced in proof of that singular assertion. The term "rlly, by the highlands which divide the Southern tributary strean;. of this river from the upper branches of the Penobscot. These last rientioned Highlands, which are these claimed by Great Britain as the boundary line, divide no other rivers from each other, but those of the Penobscot and of the St. John. They divide the rivers that fall into the Atlantic Ocean from those which e.apty into the River St. Lawrence, in the same, manner precisely, as the Thames divides Surrey from Suffolk, and as the Rhine divides France from Poland. The Pyrennees are sufficiently mountainous and elevated, and they di- vide Spain from France. Can they bo said to divide Germany from Spain ? If the British line can be said to divide the waters of the Penobscot from those of the St. Lawrence, and if. on that account, Great' Britain may claim the intervening territory ; this may equally be claimed by the United States, since their line divides in the same manner the waters of the St. Lawrence from those of the Penobscot. The pretended in- terpretation of the term "to divide," leads only to the conclusion, that the negotiators of the treaty, instead of declaring what the boundaries were, led the whole upper basin of the St. John, and, as will hereafter be shown, left it knowingly, u subject of future dispute between the two Powers. It will be shown in a subsequent section, *iiat the term " Highlands which divide livers" is exclusively applicable to the ground in which those rivers hrve their sources. Another assertion in the British statement is that, because one of the boundary lines (the highlands,) was to separate the sources of the rivers to be divided, it f Jlovcs that nono of those rivers can according to the treaty be intersected by another line of the boundary, (the due north line.) Without adverting at present to the inferences attempted to be drawn from that supposition, it will be sufficient here to observe: that the intention of that clause of the treaty is precisely what it purports to be, viz. that the boundary line should, through its whole extent from the north-v est angle of Nova Scotia to the head of Conneciicut River, divide from each other the rivers that, empty themselves into the River St. Law- rence, from those which fail into the Atlantic Ocean ; that this impera- tive clause, thus to divide the said rivers, applies exclusively to that par. ticular part of the Boundary thus precit-'elj defined ; that it does not pre- scribe, either to divide or not to divide rivers, with respect to any other portion of the Boundary be* veen the two Powers ; and that every other portion of the said Boundary is defined distinct'y, and must be under- •1* 80 Tenm of the Treaty. iy II Ij! i : stood as thus defined, according to the terms in which each such portion is respectively described. ^ J, '..n*,, The report of Messrs. Featherstonhaugh and Mudge will be examined in another place. But it is evident that the line of highlands which they have explored, however elevated and mountainous it may be, is, in po- sition, in direct opposition to the terms of the treaty. It appears to commence on the due north line, south of the Roostuc River, a few miles north of Mars Hill, and to terminate at the highlands, acknow- ledged by both parties, a few miles south of the point where the British line according to the map A. terminates. The point of departure on tlie north line, like M<*rs Hill, can divide no other watersthan tributaries of the St. John. And thence to its termination as above stated, the boundary line, through its whole extent, divides, in the same manner as the British line on the map A. or can divide no other rivers than those which fall into the River St. John, from those which fall in the same river, or from the tributary streams of the Penobscot. The same observation will apply to every other point on the due nij "^h line, south of that contended for by the United States, and to any oth line than thai which they claim. No other point will fulfil the conditions prescribed by the treaty, viz : that the north east angle of the United States, the summit of which is the same as the summit of the north west angle of Nova Scotia, must be on the highlands, which divide those rivers that empty themselves into the Rive. St. Lawrence, from those which fall into the Atlantic Ocean. Any line, drawn from "any point of the due north line, other than the line of highlands in which the rivers emptying themselves into the River St. Lawrence have their sources, must necessarily, througl its whole extent, to the highlands acknowledged by both parties, pass over ground which does not divide, from each other, those rivers which by the treaty are prescribed to be divided. Such line, as will appear by looking at a;iy map of the ccuntry, instead of dividing or separating rivers, must intersect several branches of the St. John, and the St. John itself, if the line commences at a point north of that river. Or, if it does divide any rivers, they will be only some of the tributaries of tha St. John. If the objections against the American line could be sustained, the British line, as well as any line other than that claimed by the United States, would still be, in position, inconsistent with, and in direct oppo- sition to the express terms of the treaty. Should those objections pre- vail, the only legitimate inference would be, that the negotiators of the treaty had prescribed a boundary line, the conditions of which were con- tradictory, and therefore that the treaty could not be executed. It will be heieafter demonstrated, that, with respect to the north-eastern i Highlands. 81 ;h portion examined which they is, in po- appears to ver, a few 8, acknow- the British parture on I tributaries 5 stated, the manner as than those n the same ,e due nil '♦h ) any oth treaty, viz : of which is Scotia, must themselves ;he Atlantic ler than the to the River its whole over ground )y the treaty looking at rivers, must itself, if the s divide any in. stained, the the United direct oppo- ections pre- ators of the h were con- d. lorth-eastern boundary, the negotiators of the treat), if they did prescribe such contra- dictory conditions, did it deliberately and knowingly. •1 "it: § 3. Signification cf the expression " Highlands which divide Rivers." It has already been observed, that the term <' Highlands," used alone, was one of relative import and indeterminate signification: that, if thus used alone in the treaty, it wo'dd have been inapplicable to a boun- dary ; and there would have been no certain criterion by which to as- certain what were the highlands intended. The word used alone has been applied to various objects, sometimes to a certain district of country, at others in order to designate some par. ticular spot, always relatively to some other district or object. The highlands of Scotland are a district of country generally moun- tainous, thus called, as contradistinguished from the southern part of Scotland, known by the name of Lowlands. The name of Highlands is given, in New York, to that particular portion of the extensive chain, known in Virginia by the name of Blueridge, through which the tide water has> forced its passage up the river Hudson. In New Jersey, the Highlands of Neversink are apparently insulated hills of very moderate elevation, close to the Sea shore. In every instance, the word, is used as a relative teir.4 in reference, either to the Lowlands, to the River Hudson, or to the Sea. But the word " Highlands," is never used in the treaty, but connect- ed with the words " which divide the rivers, &c." And it is according. ' cuntended, on the part of the United States ; that the property of • *'\ :t':s the rivets designated by the treaty, is that which affixes to that V. ^ r!3' a a definite and precise meaning; that, united with that ad- junct, '..lei word '< Highlands" was judiciously selected, in reference to an unexplored country, as applicable to any ground, whatever might be its nature or elevation, along which the line dividing the rivers should be found to pass ; and that the fact, that the ground dividing rivers is necessari- ly more elevated than those rivers and their banks, is sufficient to entitle it to the designation of " Highlands," in relation to those riverii. On the other hand, Gr^at Britain maintains, that the term " Highlands," em- nloyed in the Treaty- implies, not merely lands which divide rivers flow. ' 'g iu opposite (directions, but high, i. e. elevated lands, or, in other Words, a mountainous trac*; of country ; that, it is not however neces- sary, that those highlands should present an absolutely unbroken and 32 Terms of the Treaty. ii! I| I iili i 111! continuous ridge, without the intervention of valley or swamp ; but that the highlands contemplated by the treaty ought to conform to the above cited definition of the !erm, by displaying a generally elevated and mountainous character. Such a character, Great Britain affirms, that the highlands claimed by her do in reality bear ; a fact which may be admitted. She further af- firms, that not one-third of the American line can be shown to run along any lands which, according to her definition of the term, are entitled to the appellation of highlands ; an assertion which, the line not having been yet surveyed, is neither admitted or denied. It is evident, from what precedes, that, on the part of the United States, the elevated or moun- tainous character of either line is considered, as unimportant and irrel- evant to the questions at issue between the two Powers. It is true, that a common error prevails in relation to that subject, viz : that of suppos' ], ^bat highlands which divide rivers must be mountain- ous. Because the Alp^ /ide the rivers of Italy from those of Germany and France ; because those of France are divided from those of Spain by the Pyrennees ; because, in America, the Alleghany moun- tains, for an extent of several hundred miles, divide the sources of the rivers which fall into the Gulf of Mexico, from those of the rivers which empty themselves into the main Atlantic Ocean ; it seems to have been concluded by many, whose opinion was founded only on an erroneous analogy, that the highlands which divide the rivers which, in the territory in question, flow in opposite directions, must also be a continuous chain of conspicuous mountains, soaring above all the adjacent country. But nature is not so uniform in her works, as the tendency of the hu- man mind to generalize would make her; facts will overset systems formed before those had been ascertained ; and the ridges which divide the sources of the River St. John, from the tributary streams of the River St. Lawrence, as those which separate the Volga from the Neva, the Niemen and the Duna from the Nieper, though they may not have the character of conspicuous mountains, are not the less embraced by the general expression of <' highlands which divide those rivers respec- tively." If, even in America, where the term << dividing highlands" is general- ly used, some otherwise well informed men, such as Mr. Sullivan, were not acquainted with its technical meaning ; it is natural that it should have been misunderstood in England, where, the term ''Highlands," as dividing Rivers, has, it is believed, never been used, either in public documents or other works, except in reference to American geography and in conformity with American phraseology. There does not seem indeed to be any English term precisely corresponding with that of Highlanda. St >; but that the above iTated and claimed by further af- ) run along I entitled to laving been from what ] or moun- t and irrel- ubject, viz : I mountain- f Germany n those of my moun- jrces of the ivers which have been 1 erroneous the territory continuous ent country, of the hu- set systems hich divide lams of the [J the Neva, iy not have nbraced by irers respec- is general- livan, were it it should hlands," as in public geography s not seem vith that of ■s "height of land," or, " highlands," as used in Americain reference to the division of waters. It is not known, by what specific appellation, a line running, for instance, along the ground which divides the rivers iu £ng. land, which fall into the Irish Channel, from those emptying themselves into the North Sea, might be properly designated according to English geo- graphical phraseology. That ground would certainly be called in Cana- da and the northern part of the United States, by the name of high- lands ; in the middle and southern states, by that of dividing ridge. An appellation, to which that ground is not, on account of its elevation or mountainous character, better entitled, than that which the United States claim as their north-eastern boundary. There is however an equivalent in the French language. The word « Versants," literally " Pourers," is the word used to express the ground from which waters flowing in opposite directions are poured ; in other words, the ground in which those waters or rivers have their sources. The principle of making those " Yersants" a boundary line has, it is believed, been adopted in some of the conventions between France and both Spain and Sardinia. A single and obvious consideration is conclusive against the asser- tion, that, under the treaty, a visible elevation and a generally mountain- ous country are an essential character, imposed on the boundary line by the term " highlands." The supposition of two contradictory conditions is inadmissible in &ny definition. The essential condition of dividing rivers is imposed on the highlands contemplated by the treaty, in the most clear and ex- press terms, and is undeniable. No implied condition, attempted to be inferred from a supposed meaning of the indeterminate word " high- lands," can be admitted, if it is, or might be contradictory of the first express and undeniable condition. The nature of the ground, over which, either of the two conflicting British and Ametican lines respec- tively pass, was not known, even so late as the year 1817, when the first surveys were attempted under the Ghent Commission. To this day, the American line has been but very partially examined. In their total ignorance of the nature )f that ground, it was impossible for the negotiators of the treaty of 1788 to divine, whether a line, dividing the rivers speci6ed by the treaty, would also be found to extend along a generally mountainous country. And since it v/as not known, whether their would, or would not be the case, the supposition that such a char- acter, (which might prove contradictory of the first essential and ac- knowledged condition,) is attached to the word " highlands," is inadmis- sible. But it will besides be now demonstrated ; that the terms « highlands which divide rivers," and " height of land" are synonymous ; that the ii!!:.p ,!..!:;;:, m I S4 Terma oj the Treaty. term " height of land," and occasionally that of " highlands,'* is used uniformly to designate the f^round which divides rivers, without regard to its elevation ; and that the same term always designates the ground, in which the rivers thus divided actually have their sources. The first position is undeniable. Governor Pownall says : " the Connecticut River rises in north lati- tude 45<3 10', at the height of the land in longitude, &c. It has its birth in a swampy cove at the height of the land." Again ; « a range running hence crosses the East Boundary line of New Hampshire in latitude 44^, and tending north east from the height of the land between Kennebaeg and Chandiere Rivers: of the nature and course of this high Land in these parts I am totally uninformed." Again; << all the Heads of Kennebaeg, Penobskaeg, and Passam- aquoda River are, on the Height of the Land running east north east." Thus both the highlands contemplated by the treaty, and acknow- ledged as such by both powers, and the highlands claimed on the part of Great Britain, as being also contemplated by the treaty, are designated by Pownall, by the appellation of Height of the Land. The Southern boundary of the Province of Quebec, or Lower Cana- da, is, iu every public act of Great Britain which designates it, describ- ed as being along the highlands which divide, &c. The Committee of the Executive Council of the Province of Quebec, in their report of August, 1787, speaking of that boundary, call it the '* height of land." Mr. Bouchitte, late surveyor general of Lower Canada, speaking of a chain that commences upon the Eastern branch of the Connecticut Ri- ver, takes a north-easterly course, &c., and terminates near Cape Rosi- er, calls it " the ridge generally denominated the land's height, dividing the waters that fall into the St. Lawrence from those taking a direction towards the Atlantic Ocean. In his large map, he gives the name of " height of land" not only to the acknowledged highlands, but also to those in the vicinity of Lake Temiscouata ;; whilst, in his topographical description, (page 535,) he says that the River du Loup, which has its source in that identical height of land, rises in the highlands. Finally, it is expressly affirmed in the British statements, that " the term height of land was well known in America, and frequently used in works, with which the Negotiators of the Treaty cannot be supposed to have beeu unacquainted, to express any land immediately separating head waters falling off on each side in opposite directions." And it is likewise positively acknowledged, that " the distinctive appellation of the ** height of land," was given to the highlands acknowledged by both parties, viz : those " dividing the waters that fall into the Atlantic Ocean, from those which fall into the River St. Lawrence to the West of the flources of the River St. John, and (of) the western head of the Fenob. I Highlands, W Is," is used hout regard the ground, a north lati- has its birth idary line of n the height ' the nature nformed." nd Fassam- north east." nd acknow- l on the part ■e designated Lower Cana- Bs it, describ- i^ommittee of leir report of it of land:* ipeaking of a inecticut Ri- r Cape Rosi- ght, dividing r a direction the name of 9, but also to ;opographical hich has its Is. ,ts, that " the quently used be supposed separating And it is llation of the Iged by both lantic Ocean, est of the the Fenob> scot." Several other instances will be given of the two terms being used as synonymous, as we proceed to show the signification of the term "height of land." Governor Pownall says, (page 10,) "The Hudson's River arises from two main sources derived by two branches whirh meet about ten miles above Albany, the one called the Mokawk's River, (rising in a jiat level tract of country, at the very top or height of the land to west- ward,) comes away east and south-east at the foot, on the aorth sides of the mountains, which the Indians call by a name signifying the endless mountains." In this instance, the appellation of the « height of the land" is given, not to the mountains, the basis of which is washed by the river in its further course east and south-east from its source, but to the very spot in which the Mohawk River takes its source, and which divides it from the sources of rivers flowing into Lake Ontario ; and that height of the land is expressly stated to be " aflat level tract of country." Again, (page 13,) " Between the northern part of the Hudson's River, and the southern parts of the Lakes (6) and drowned land, is the height of the land of about twelve or fourteen miles breadth, whence the waters run different ways, part to the South, part to the north ; over this Port- age to Lake George is a wagon road. Across this very height of land, which divides the waters of two mighty rivers, the Hudson and the St. Lawrence, the Canal has now been opened, which unites Hudson's river with Lake Champlain, the outlet of which flows into the River St. Lawrence ; and that height of land, the summit level of the Canal, the point de partage, is only 147 feet above the level of tide water, as will be seen by the report of the Commissioners, and by the map in illustration thereof. It is believed, that a more conclusive proof than is afforded by the two last quotations, cannot be adduced, that the appellation of « height of land" is given only in reference to the division of waters, and not in the least to the character and elevation of the ground. The celebrated British traveller. Sir Alexander McKenzie, the first who, from the River St. Lawrence, penetrated through the Continent of North America, both to the Arctic and to the Pacific Oceans, has prefixed to the account of his voyages, a general history of the fur trade from Canada to the North-west. He describes, with great precision and correctness, the route pursued by the traders, from the junction of the Utawas River with the St. Iiawrence, near Montreal, to the waters of (d) Viz : Lake Champlain and Lake George. The situation of the drowned lands, on the South Bay of Lake Champlain, (where the Canal terminates,) may be seen in Pownall'a and several other maps. 86 Terms of the Treaty. liihii the great Arctic, or McKenzio's River. And he designates the various dividing grounds traversed on that long voyage, in the following man> ner: Speaking of the Portage, from the source of the Petite Reviere, a tri- butary of the Utawas River, to the waters of the French River, which empties into Lake Huron, he says, " The last (Portage) in this river (Petite Riviere) is the Turtle Portage, eighty-three paces, on entering the lake of that name, where, indeed, the river may be said to take its source. From the first vase to the great River, the country has the ap- pearance of having been overrun by fire, and consists, in general, of huge rocky hills, The distance of this portage, which is the height of land between the waters of the St. Lawrence and the Utawas, is 1613 paces to a small Canal in a plain, that is just sufficient to carry the loaded ca- noe about one mile to the next vase, which is 726 paces." Alexander Henry, an earlier traveller, who passed over the same divid- ing ground in the year 1761, gives it the same appellation. *< We had now passed the country, of which the streams fall North-eastward into the Outawais, and entered that from which they flow, in a contrary direction towards Lake Huron. On one side of the height of land, which is the reciprocal boundary of these regions, we had lefl Lake aux Tourtes and the River Matawa, and before us, on the other, was Lake Nipisingue. McKenzie, speaking of Lake Superior, says, '< This Lake may be denominated the crand reservoir of the River St. Lawrence, as no con- siderable rivers discharge themselves into it. . • . . Indeed, the extent of country from which any of them flow, or take their course in any direction, cannot admit of it, in consequence of the tidge of land tliat separates them from the rivers that empty them- selves into Hudson's Bay, the Gulf of Mexico, and the waters that fall in Lake Michigan." Henry, navigating along the northern shore of Lake Superior in the year 1776, says, " In the evening we encamped at the mouth of the Pitijic, a river as large as that of Michipicoten, and which in like man- ner takes its rise in the high lands lying between Lake Superior and Hudson's Bay. From Michipicoten to the Pitijic, the coast of the lake is mountainous : the mountains are covered with pine, and the valleys with spruce fir." It will be observed, that the dividing ground which separates the rivers that fall into Lake Superior, from those that empty themselves into Hud- son's Bay, which McKenzie calls the ridge of land, is by Henry desig- nated by the name of high lands ; and that this last writer, reserving that term for the dividing ground, gives the name of mountains to the coast of the lake. McKenzie, afler having described the route from the shores of Lake Highlands. 87 the varioua wing man- viere, a tri- .iver, which I this river >n entering to take its has the ap- eral,ofhuge ight of land I 1513 paces te loaded ca- ! same divid- , « We had astward into rary direction which is the Tourtes and Nipisingue. lake may be e, as no con- I • • • them flow, consequence empty them- aters that fall iperior in the nouth of the in like man. Superior and t of the lake 1 the valleys tes the rivers ^es into Hud< ~ [enry desig- reserving that to the coast jres of Lake 1> 11 Superior, about forty miles to the north-west, says, " From hence the course is on the lake of the same name, ( Perche) west-south-west three miles to the height of land where the waters of the Dove or Pigeon River terminate, and which is one of the sources of the great St. Law- rence in this direction. Having carried the canoe and lading over it 679 paces, they embark on the lake of Hauteur de Terre, which is in the shape of a horse.shoe. It is entered near the curve, and left at the extremity of the western limb, through a very narrow channel, where the canoe passes half loaded for 30 paces with the current, which conducts these waters till they discharge themselves through the succeed- ing lakes and rivers, and disembogues itself, by the River Nelson, into Hudson's Bay." Henry, speaking of the same dividing ground which he describes as a chain of lakes, says, '< The region of the lakes is called the Hauteur de Terre, or land^s height" Describing the rivers that empty themselves into Lake Winipic, Mc- Kenzie says, .'< those on the north side are inconsiderable, owing to the comparative vicinity of the high land that separates the waters coming this way from those discharging into Hudson's Bay." Here McKenzie designates the dividing ground by the name of high land. Sometimes he calls it a ridge ; when he speaks afterwards nf the two places which divide the waters of the River Missinipi from those of Lake Winipic, and of McKenzie's River respectively, he uses, as synonymous, the word por/ao^e, (in English, carriage ;) which last desig- nation is more particularly applied to the route or path across the height of land, along which the canoes are carried from water to water. But he never uses the term height of land itself, except for the purpose of designating the ground which does divide the rivers. Mr. Bouchette, besides other instances, mentions <' another and high- er range of mountains that forms the land^s height, and divides the waters that empty themselves into the St. Lawrence, from those that descend into Hudson's Bay." And, in another place, (page 36,) he'says, " Between it (Lake Micni. gan) and Lake Huron, there is a peninsula that, at the widest part, is 150 miles, along which, and rouud the bottom of Michigan, runs part of the chain forming the land's height to the southward ; from whence descend many large and numerous inferior streams that discharge into it. On the north side of Lake Huron, many rivers of considerable size run from the Zand's height down to it. One of them, called French River, communicates with Lake Nipissing." This last land's height is the same mentioned by McKenzie and Henry, as dividing the waters of the Utawas River from those of Lake Huron. That to the southward of Lake Michigan, is that which divides 4 If? F i'i ' m Wfi. If: i 1 r:r 38 Temu of the Treaty. its waters from those of the Illinois River, a tributary of the Mississlp' pi ; and this 1011(1*8 height is a swamp, and at one place a pond, which, when swelled by rains, discharges its waters both ways, so as that a canoe may then pass, without being carried across, from Lake Michigan into the Illinois River. It had already been shown, that the term " highlands," taken in a general and indeterminate sense, was well adapted to the purpose of designating, in the most general manner, the nexplored ground divid- ing certain specified rivers, along which the boundary line described in the treaty was intended to pass. It has now been conclusively proved that, independent of its general sense, the word " highlands" is, in common, and as synonymous with ^* height of land," a term in general use in Canada, and in New Eng- land, for the purpose of designating, without any reference to its eleva- tion or nature, any species of ground which divides rivers flowing in different directions, and the ground in which those rivers actually have their sources. And it has been also incontestably proved, that the designation of "height of land," (respecting the use of which for that purpose exclusively, there can be no doubt,) has been and is perpetually applied to the ^ery highlands, which are by both parties acknowledged to be part of those described and intended by the treaty. The appropriate use of that term, in the treaty, is therefore in every respect indisputable. And it must also be recollected, that it was borrowed from the proclamation of 1763, and other public acts of Great Britain ; that the particular use of the term in that sense is of Canadian origin ; and that it was for the first time used, and has been retained in subse- quent public British acts, for the express and sole purpose of defining the boundary of Canada. It is not unimportant to observe here, that the dividing highlands, . > knowledged as such by both parties, do not appear to have every where that mountainous character which is required according to the British definition. The Metjarmette Portage, which is common to the two conflicting lines, is of a similar character with those of the River Quelle and of the Aliguash. The sources of the Metjarmette, of the Penobscot, and of the St. John, rise close to each other in the same swamp. The ac- knowledged highlands, for an extent of ten miles in a southerly direc- tion from that Portage, are designated in Mr. Campbell's sketch as "low land." And the British Surveyor, Mr. Carlile, speaking of the height of land between the River Connecticut and the sources of the St. Fran- cis, which is a tributary of the River St. Lawrence, says, that its sources are found in the same swampy ground, and a few reus from those of Indian and Hall's Streams, which empty themselves into the lliver Con- necticut. 'i Jtllantic Ocean. 8f MissiBsip- ind, whichy tiat a canoe :higaD into aken in a purpose of tund divid- lescribed in its general lymous with New Eng- [o its eleva- I flowing in ctually have ed, that the ich for that perpetually ;knowledged ore in every tras borrowed eat Britain ; dian origin ; ed in subse- of defining ighlands, . > every where the British conflicting uelle and of obscot, and ip. The ac- therly direc- etch as " low >f the height he St. Fran- at its sources m those of ! lliver Con- §4. The term " Atlantic Ocean " how far contradistinguished from tha Bay of Fundy, and from the Gulf of St. Lawrence. The principal objection, on the part of Great Britain, to the boun- dary line claimed by the United States, is stated in the following wordS| in the first British Statement. " The first point to be considered in treating this question is, whether the term Atlantic Ocean, as used in this part of the second article of the treaty of 1783, is not coutradistinguished from the terra Bay of Fundy. This is the cardinal point of the whole of this branch of difference (the north-eastern boundary) between Great Britain and the United States. With respect to that point, then, Great Britain maintains, that through- out the whole treaty of 17S3, it is demonstrable by the letter of the treaty, as well as by collateral and inductive evidence, that the term *< Bay of Fundy " is used as totally separate and distinct from the term " Atlantic Ocean ;" and therefore, on this, as well as other sepa- rate and peculiar grounds, that the River St. John which falls into the Bay of Fundy is taken as distinct from those rivers which are described in the treaty as falling into the Atlantic Ocean." The objection is, in substance, sustained on the following grounds : 1. That the term Atlantic Ocean is in itself a limited appellation, not including bays and gulfs, generally known by specific designations, (with the exception, however, of such bays as are merely expansions of the mouth of rivers ;) and that, as respects the rivers to be divided, the limitatioQ of the term Atlantic Ocean is farther established, by its having been substituted in the treaty, for the more comprehensive expression Sea, which had been used in the proclamation of 1763. 2. And principally : that the term " Atlantic Ocean," even if under- stood in a more extensive sense, when used alone, is so limited and restrained, by that ocean being expressly contradistinguished in a clause of the treaty from the Bay of Fundy ; that this bay must, throughout the whole treaty, necessarily be taken as distinct from that Ocean ; and that the rivers, particularly the St. John, emptying themselves into the said bay, (or into the Gulf of St.' Lawrence,) are not, within the meaning of the treaty, rivers that fall into the Atlantic Ocean. 3. That this position is confirmed by other considerations, principal- ly drawn from the intentions of the negotiators of the treaty. The meaning of the term Atlantic Ocean, when used alone, will be first examintd. " Sea," in Us general sense, embraces the whole body of salt waters m :!':i I 40 Term$ of the Treaty. on the globo. Some of its parta in Europe and Asia, have, from an. cient and universal usage, preserved the name of sea, such as the Medi- terranean, the Baltic, &c. ; but, as a whole, its great subdivisions are uniformly designated by the names of Atlantic, PaciHc, Indian, Arctic, Antarctic Ocean ; and each of these is a generic appellation, embracing, when not specially or impliedly excluded, all the bays, gnlfs, and inlets, which are only portions of such ocean, and formed by the indentures of the shores to which it does extend, or by adjacent islands. The northern Atlantic Ocean extends from the European shores to Uiose of North America. In its general sense, it embraces all the bays, gulfs, and inlets, though distinguished by distinct names, which are formed by the shores of Europe and North America. This is too generally admitted in geography to be denied. The Germriu, or North Sea '< may be regarded as apart of the Atlan- tic Ocean, terminating at the straits of Dover ; whence the British channel extends to the west. The bay of Biscay is another large inlet of the Atlantic." (Pinkerton's Geography.) (< Scotland ia bounded on the south by England, and on the north, east, and west, by the Deucaledonian, German, and Irish seas, or more properly, the Atlantic Ocean." (Guthrie's Geog.) The Atlantic Ocean, in the last instance is declared to embrace the Irish channel, and in both instances, it embraces the German sea, al- though there is no portion of the said Ocean more usually designated by its distinct appellation, than the German or North Sea. M alte.Brun, in his geography, subdivides the Seas adjacent to the American Shores, into five portions or basins, viz : 1. Great or Pacific Ocean. 2. Unknown or Arctic Ocean. 3. Hudsons Bay. 4. North Atlantic Ocean ; in which he includes by name the river (and therefore the Gulf) St. Lawrence. And, as dependencies of the said Atlantic, he enumerates the Gulf of Mexico, and the Sea of An- tilles. 5. South Atlantic Ocean. It has never been disputed that, in their general geographical accep- tation, the great divisions of the Sea embrace their subordinate subdivi- sions, nor that those subdivisions, including all inlets, bays and gulfs,, are known by specific names. It cannot be denied, that, according to every rule of language, the generic term, when used alone, must be un- derstood to embrace the subordinate subdivisions of the Sea or Ocean,, known by that term ; and that, when a specific name is used, it applies exclusively to the particular inlet, gulf or bay, designated by that name< When thus used apart from each other, there is neither confusion nor Atlantic Ocean. 4: name^ on nor difficulty. The generic term embraces, the specific name designates the su./ordinate inleta : each is used with propriety as the occasion may require. When the generic term Atlantic Ocean, and the distinct name of one of its inlets, are used in the same sentence, as contradistinguished from each other, the signification of the general term is thereby restrained ; and it must be so understood cs to exclude the inlet th*.:s distinctly de- signated. Thus, in the description of the boundary of East Florida, as defined by the proclamation of 1763, the signification of the term Atlantic Ocean is restrained, so as to exclude the Gulf of Mexico and what is there called the Gulf of Florida In that clause of the treaty, however, which specifies the rivers to be divided, and which is at this moment alone under consideration, the term "Atlantic Ocean" is not contradistinguished from, or united with, either of those, " Bay of Fundy" or '< Gulf of St. Lawrence." It must neces* sarily, in its usual acceptation, and as the generic term, be understood there as including both those inlets, unless it can be shown that, as \e true with respect to some of its other geographical subdivisions, the term << Atlantic Ocean," when used alone, has been usually understood as ex- cluding those two inlets. The acceptation of terms, as generally use**, in common language, is a proper guide in the interpretation of treaties; and there are several European seas, which, though embraced by the geographical definition, are commonly considered as not included within the term "Atlantic Ocean." The Mediterranean and Black Seas were the first known to the ancient civilized nations ; they were therefore the first which received special appellations : and that of Mediterranean has been used from the earliest times to distinguish the sea, still known by that name, from the sea without the straits, at first called Ocean, and now Atlantic Ocean. By a parity of reasoning, the Baltic, being a close sea, was' from its first discovery considered under that name, as distinct from the ocean. Long usage has consecrated those expressions ; and it will therefore be admitted, that although geographers, in their great divisions of the Ocean, consider those several seas as parts of the Atlantic Ocean, they are generally, in common language, taken as distinct ; so as to render it doubtful whether the term " Atlantic Ocean," used by itself in a pub- lic docume 't, could be properly understood to include those inland seas. But it ma be confidently usserted, that in common language, as well as in its geographical acceptation, the term •' Atlantic Ocean," when used alone, and its meaning is not restrained by some other expressions, has ever been held to embrace all the inlets, bays, and gulfs of the Ameri- 4* 48 Ter.M oj the Treaty. I ' I ill,. can coast; or, that if there haa ever l^eeu auj exception, it is solely that of the Gulf of Mexico. Thus Governor Pownall, when speaking generally of the Athntic Ocean, considers it as embracing even the Gulf of Mexico. " We know from observation how much higher the Atlantic Cccan is than the PaciHc ; and how t7 is piled xip against the American coast on the nest' ernsho-ie of the Gulf of Mexico, driven thither by the trade winds," &c It is declared, in the Proclamation of 1763, to be the royal will, that no Governor, or, Commander in Chief of our other colonic 3 or plan- idtions in America, do presume, for the present, and until our further pleasure be known, to grant any warrant of survey or pass patents, for any lands beyond the head or sources of any of the rivers which fall into the Atlantic Ocean from the west or north-west." Those other colonies, lying between those of Quebec and £ust Flori' da, extended along that line of demarcation beyond which known, and, iu Mitchell's map, designated by a specific and distinct name : that is to say ; the River Ristigouche, thrci.'jh the Bay des Chaleurs, and the Gulf of St. Lawrence ; the River St. Jonn, through the Bay of Fundy ; the Rivers Magaguadavic, (Mitchell's St. Cro?;:) und Scoodiac, (Mitchell's Passamacadic) through the Bay of Passama- quoddy and the Bay of Fuudy ; the Penobscot through the bay of the game name; the Kennebec through the Sogadthock Bay; and the Connecticut River through Long Island Souiid, which last inlet is as much a close and dit^tinct sea or portion of the Atlantic Ocean as the Allantic Ocean. 49 Gulf of St. Lawrence, and more bo than the Bay of Fundy. So that if the rivers which fall into the Atlantic through a gulf, bay, or inlet, known by a distinct name, are not, under the treaty of 1783, rivers falling into the Atlantic Ocean, there is not a single river intended to be divided} to which the description applies. Such bays as the Sagadahock and the Penobscot, are considered in the British Statements, as « merely the cxpauhions of the mouth of I'vers of which they bear tlie rame, and to be regarded in no other light than as portions of the rivers themselves." 'Se assertion, that the ^erm Atlantic Ocean does not generally embrace the hays und gulfs coniieuted with it, rests on the fact that such gulfs and bays are designated as such ; and that fact is as true of the Sagadahock and Penobscot Bays, as of the Bay of Fundy or of the Gulf of St. Lawrence. And if those Bays v/hich are described in the British Statement, as the expansions of the mouths of river*^, can be re- (jarded in no other light than as portions of the rivers themselves, those bays aisc which, like that of Fundy, are merely contractions of the Ocean, must necessarily be regarded only as portions of the Ocean itself. It cannot, at all events, be denied, that Long Island Sound, through which Connecticut River empties itself into the Atlantic Ocean, is a large inlet of the Atlantic, of a more distinct and marked character than the Bay of Fundy ; nor that the Rivei Connecticut is, as much as the PpLobscot and the Kennebec, one of the rivers describe' in the treaty, as falling into the Atlantic Ocean, and which arc to be divided from the rivers falling into the St. Lawrence ; since the boundary line extends along the dividing Highlands, as far as the north-westernmost source of that river, (c) and must pass along its more easterly sources. Great stress is laid on the fact, that the rivers intended to be divided, or contradistinguished, from those emptying themselves into the River St. Lawrence, are defined in the Proclamatian of 1763, and in the Quebec Act, ns falling into the Sea ; acd, in the treaty, as falling into the Atlantic Ocean. The word " Sea " 's more comprehensive than the words Atlantic Ocean, not as including bays or gulfs, which are par;s of the said Ccean, but because it also embraces the Pacific, Indian Oceans, and other great subdivisior? which are no part of the Atlantic. And as none of those gre^t subdivisions of the Sea, save the Atlantic Ocean, has any connexion with the subject matter of the Proclamation, ■ I: (c) The Connecticut River rises in latitude 45* 10 , at the height of land ; it has its biith at the height of the land. (Fownall as already quoted, j 44 TertM of the Treaty. m 'i P .1! of the Quebec Act, or the Treaty ; as no other but the Atlantic lies ad* jacent to the countries designated in those three instruments, the words " Seo " and " Atlantic Ocean " are used there in the same sense. Se- veral instances might be found ; {d) but what will altogether remove any doubt, in that respect, is that the two expressions are used as synony- mous in the Proclamation itself, and that, too, with respect to rivers fall- ing into the Sea or Atlantic Ocean- The provision of the Proclamation last quoted, declares it to be the Royal will, that " No Governor, &c. of oui other Colonies or Planta- tions in America, &c., do presume, &c. to grant warrants of survey, or pass patents for any lands beyond the heads or sources of any of the rivers whieh fall into the Atlantic Ocean from the westy or north-west" ^c. And the Proclamation then proceeds to declare that the King does reserve under his Sovereignty and dominion for the use of the Indians « all the lands and territories lying to the westward of the sources of the rivers which fall into the Sea from the loest, and north'iceat as afore- said,'" ^c. It has been demonstrated, that the Highlands contemplated and de- scribed by the Proclamation of 1763, and by the Quebec Act, viz : the Highlands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the Sea, are the identical High- lands contemplated and described in the treaty of 1783, viz : the High- lands which divide those rivers, that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean. As this important fact has been questioned in the British Statements, it is necessary again to refer to the conclusive proofs given in the first section of this argument ; 1. that the north-west angle of Nova Scotia is placed, by the express terms of the treaty, on the highlands which di- vide the waters of the River St. Lawrence from the Atlantic Rivers : 2. that the mention in the treaty of the north-west angle of Nova Scotia, instead of defining only the north-east angle of the United States, could only be in reference to such an angle previously designated : 3. that such designation was accordingly found in the latest public acts of the British Government on that subject, namely the Proclamation of 1763, the Quebec act of 1774, and the Commissions of all the Governors of Nova Scotia subsequent to 1763. By the Commissions of all the Governors of Nova Scotia, from the year 1763, to that of the 29th of July, 1782, issued to John Parr, who (d) In the Charter of Massachusetts, are found the following words, "the Atlan- tic, or Western Sea, or Ocean," The British Agent uvider the commission of 1797, alluding to the southern boundary of the Province of Cluebec as prescribed by the Proclamation uf 17C3, describes it, as highlands diriding the waters of the river St. Lawrence, from the rivers which fall into the Sea, or " Atlantic Ocean." Atlantic Ocean, 46 was the Governor at the date of the Provisionai Articles of Peace of November, 1782, and of the deiinitive treaty of September, 1783, that Province was declared to be bounded on the westward, by a line drawu from Cape Sable across the entrance of the Bay ofFundy to the mouth of the River St. Croix, by the said river to ita source, and by a line draicn due north from thence, to the southern boundary of our Colony of Quebec ; and, to the northward, by the said boundary, so far as the west* em extremity of the Bay des Chaleurs." By the Commissions of the Governor of the Province of Quebec, from 1763 to 1774, the southern boundary of that Province was des- cribed in conformity with the ProclaiTiation of 1763, as a line which « crossing the River St. Lawrence and the Lake Champlain in forty-five degrees of northern latitude, passes along the highlands which divide the rivers that empty themselves into the said River St. Lawrence from those which fall into the sea, and also along the north coast of the Bay des Cha. leurs." And in the Commissions of Governor Carleton, of 27th De- cember, 1774, and of that granted, on the I8th of September, 1777, to Frederick Haldimand, who was still Governor in November, 1782, and September, 1783, the said Province is, in conformity with the Quebee Act of 1774, declared to be ''bounded on the south, by a line from the Bay des Chaleurs along the highlands tvhich divide the rivers that empty themselves into the River St. Lawrence from those which fall into the sea, to a point in 45 degrees in northern latitude, on the eastern bank of the River Connecticut." The north-west angle of Nova Scotia is declared, by the treaty, to bo on the highlands which divide the Rivers that emp' themselves into the River St. Lawrence, from those which fall into thu Atlantic Ocean. That angle is proved to be identic with that north-west angle of Nova Scotia, which, by the previous Acts of the British Governm«iu, had been declared to be, on the highlands which divide the rivers that empi/ themselves into the River St. Lawrence from those which fall into the Sea. It necessarily follows that the highlands described in the treaty, as dividing the rivers that empty themselves into the River St. Laivrence from those which fall into the Atlantic Ocean, are precisely the same with those highlands described, in the previous Acts of the British Government, as dividing the rivers that empty themselves into the Riter St. Lawrence from those which fall into the Sea ; and therefore, that the term " Atlantic Oceen," as used in that clause of the treaty, is synonymous with the word " Sea," as used in the previous Acts of the British Government. ,i It is principaMy on the restricted sense in which, by the express termi of the treaty, the term Atlantic Ocean must in one clause be understood. 46 Terms of the Treaty. Jt !!■ .'ffliil liiil: that Great Britain relies, m order to prove, that the River St. John can- not be considered as one of the rivers which, as falling into the Atlan. tic Ocean, is intended by the treaty to be divided from the rivers that empty themselves tnto the River St. Lawrence. The argument is stated in the following words, in the first British Statement. « That, in the first place, the Bay of Fundy is not to be considered as comprehended, under the Treaty, in the Atlantic Ocean, is clearly demonstrable, it is conceived, from the following considerations." " In the second article of the Treaty of 1783, and in one of its most essential points of designation, viz : that of the extreme eastern and the extieme western Sea coast Boundaries of the United States, the Bay of Fundy and the Atlantic Ocean are specifically distinguished the one from the other ; the latter or extreme western boundary, being in explicit terms, described as terminating in the Atlantic, by name, while the former or extreme eastern boundary is, in v<;qually explicit terms, des- cribed, as terminating in the Bay of J) andy, hy name." " The extreme western limit on the sea coast is described, as formed by a line drawn along the middle of St. Mary's River to the Atlantic Ocean. The extreme eastern limit is described as formed by a line drawn along the middle of the River St. Croix from its mouth in the Bay of Fundy, &c." " That article after describing other parts of the general boundaries concludes thus :" " Where the aforesaid boundaries between Nova Scotia on the one part, and East Florida on the other, shall respectively touch the Bay of Fundy and the Atlantic Ocean." " If one of these two terms is to be taken as compreh^^nded in the other, why specify both ? The declaration that the boundaries, eastern and western, of the United States, should touch the Atlantic at each ex- tremity of the country, would surely have been amply sufficient for all purposes of delimitation, had not the term " Bay of Fundy" been in- tended as totally distinct from the term • Atlantic Ocean." " In one part of the Treaty, then, the terms, "Bpy of Fundy" and "Atlantic Ocean," are manifestly intended as distinct and separate the one from the other. But being so taken in one part, they must surely be equally so considered in every other part ; for it would be contrary to all reason and consistency to assign one meaning to a term in one clause, and a different meaning to the same term in another clause of the same instrument." In the second British statement, it is likewise aflir, led that, « nothing can be more clear or positive than the distinction established in the ar- ticle of the treaty between the Atlantic Ocean and ttie Bay of Fundy." Atlantic Oceaiu 4t ohn can* [le Atlan. vers that 3t British onsidered is clearly ms." )f its most istern and s, the Bay ed the one in explicit while the terms, des- as formed iie Atlantic I by a line outh in the boundaries n the one [the Bay of ided in the ies, eastern lat each ex- lent for all " been ic- [undy" and sparate the St surely be jtrary to all )ne clause, If the same « nothing in the ar- If Fundy." « << In all the public documents (the proclamation of 1763, the charter to Sir William Alexander, the com- mission of Mr. Wilmot, Governor of Nova Scotia, the treaty of 1783, &c.,) the limits of the Bay of Fundy are substantially the same, and quite conformable to the geographical character of the place. The position and limits of the Bay of Fundy being thus clear, and the contradistinc- tion between that bay and the Atlantic Ocean being equally so in the treaty when speaking of the sea coast, it follows beyond controversy, that according to the meaning of the treaty in this part of it, the Atlan. tic Ocean begins only where the Bay of Fundy ends, and that the frara- ers of the treaty, when thus using the term Atlantic Ocean, had in view diat part of the sea, which lies westward of the moutl^iof the Bay of Fundy. The American Statement must therefore of necessity, err, when inter* preting the treaty in such manner as to suppose the Bay of Fundy in* eluded in the term Atlantic Ocean, as a general appellation applied to th'' Sea coast. The framers of the treaty, when describing St. Maiy'ji River as going down to the Atlantic Ocean, and the River St. Croix as having its mouth in the Bay of Fundy, had no doubt, particularly in view the coast of the Atlantic Ocean, which terminates at the Bay of Fundy* where the name of that bay begins to have its appropriate and exclusive epplication." <« And this being the case, as heynd all controversy it was, is it cre- dible, that in the very next line of the same instrument, the same men should have used the same term of Atlantic Ocean, intending that it should comprehend the whole coast together with the Bay of Fundy and the Gulf of St. Lawrence, both of which are particularly marked on the map, and are universally known by thei» distinctive appellations, and with a similar precision of limits, as the River St. Lawrence itself; these three names being, moreover, all of them used in the treaty with- out description, as sufficiently distinguishing the several places which they respectively designate 1" The facts are in substance correctly stated. The sweeping inference is altogether denied by the United States. The treaty first describes the highlands, as dividing those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean. In that clause, the Atlantic Ocean is contradistinguished only from the River St. Lawrence'. The treaty describes another part of the boundary as being, <* down along th middle of St Mary's River to the Atlantic Ocean. East by a Hue to be drawn along the middle of the River St. Croix from its mouth in the Bay of Fundy to its source." Here the St. Mary's River is designated as having its mouth in the !;■ V 48 Terms of the Treaty. m iWii m Atlantic Ocean ; and the River St. Croix as having its mouth in the Bay of Fundy. Finally, the treaty, in reference to the Islands within twenty leagues of any part of the chores of the United States, describes them as lying between lines to be drawn due East from the points, where the aforesaid boundaries between Nova Scotia on the one part, and East Florida on tlie other, shall respectively touch the Bay of Fundy and the Atlantic Ocean. In this clause the Atlantic Ocean is expressly distinguished from the Bay of Fundy : and the term is there limited and restrained, so as not to include the Bay of Fundy. The qaestion ai Usue is, whether, because in one part of the article, the Bay of Fundy is twice designated by its specific name, and once as coutradistiuguisheo from the Atlantic Ocean, the two terms must be con- sidered as distinct and separate throughout the treaty : whether, because the meaning o^ the term Atlantic Ocean is, in one clause, restrained by an express limitation, it is to be considered, as having the same restrict- ed sense in another clause, where it is used without that limitation. The United States contend that it would be equally contrary to reason and common usage, to assign the same meaning to a term in one clause, which it may have in another clause of the same instrument, when it appears from the general tenor of the two clauses, and the expressions used in each respectively, that the term, in one is restrained by those ex- pressions, and has, therefore, a narrower signification ; whilst, in the other, it is used in a more general sense, or is restrained in a different manner. In one of the clauses of the treaty, the term " Atlantic Ocean" is con- tradistinguished from, and must, in construing that clause, be held as distinct from the Bay of Fundy. In another clause of the treaty, the came term is contradistinguished from the River St. Lawrence alone, and must, accordingly, in construing that clause, be held as distinct from that river alone, and not from the Bay of Fundy, nor from any of the other inlets, which, in its general sense and common acceptation, are part of the Atlantic Ocean. This is perfectly consistent with the appropriate rules of language by which every instrument must be construed. " Man is superior in intelligence tu aii other animals The superior intelligence of man over woman is not universally admitted." In the last part of the sentence the term man, being contradistinguish* cd from Woman, embraces only the male sex. The same term man, in the first part of the sentence, does undoubtedly embrace both sexes. Ill |« Atlantic Ocean. 49 man is not Tet according to the mode of arguing of the British Agents, it would there exclude the female sex. In the commissions of the Governors of Nova Scotia, from 1763 to 1783, in defining the boundaries of that Province which then included New Brunswick ; the Bay of Fundy, the Gulf of St. Lawrence, and the Atlantic Ocean are each specially designated and distinguished from each other ; the appellation of Atlantic Ocean being expressly confined to the main Ocean, exclusive of that Bay and Gulf, and to that portion of it only, which extends from Cape Breton to Cape Sable. Now, whatever point of the line drawn due north from the source of the River St. Croix may be considered as the north-west angle of Nova Scotia ; or, in other words, whatever point on that line may be consider- ed as the point of intersection with the soudiern boundary of the Colony of Quebec, as described in the commissions of the Governors of that Colo- ny ; whether that point of intersection, or north-west angle of Nova Scotia, be Mars Hill, or any other point north of it ; it is impossible to draw any line whatever, from that point of intersection or north-west angle of Nova Scotia, to the western extremity of the Bay des Chaleurs, which will or can divide from each other, cross, or touch any other river or rivers whatever, but such as fall, either into the River St. Lawrence, the Gulf of St. Lawrence, or the Bay of Fundy. No river whatever falls into that portion of the Atlantic Ocean which extends from Cape Breton to Cape Sable, but such as have their sources within the Peninsula or present Province of Nova Scotia, south of toc Bay of Fundy, of the Gulf of St. Lawrence, and of the Isthmus which separates those two inlets. It is impossible that any such river should be, either divided from other waters, intersected or touched by any line, that can be drawn from any point, north of the source of the River St. Croix, to the western end of the Bay des Chaleurs. The rivers therefore which, according to the designation of the south- ern boundary of the Colony of Quebec, or northern boundary of Nova Scotia, are to be divided, by that boundary, from the rivers emptying into the River St. Lawrence, and are there described, as rivers falling into the sea, (a term used in the Proclamation of 1763 as synonymous with At- lantic Ocean,) must of necessity be those, and those alone, which fall either into the Bay of Fundy, or into the Gulf of St. Lawrence. Thus, although the term " Atlantic Ocean" is, in one part of the des- cription of the boundary, used in a limited sense, and exclusive of the Bay of Fundy and of the Gulf of St. Lawrence ; its synonymous term " Sea," in another part of the description, and in reference to the divi- sion of the rivers which are intended to be divided by the treaty, em. braces and embraces nothing but that Bay and Gulf. It may be affirmed, as a universal and invariable rule of Lnguage^^ 6 ■' M u -il in 60 Temu of the Treaty. m .111!! im te iiH that the true sense of words which, either are themselves, or, by some adjunct or limitation, may be susceptible of more than one meaning, is ascertained by the other words used, or by the general sense of the par- ticular sentence, in which such words respectively occur. The following paragraph occurs in the first British Statement : " It was evidently determined in this very important part of the boun* dary to divide from each other at their sources the several great rivers assigned to ,ach power. Such intent the expression « Highlands which divide" plainly denotes ; for what could be the object of selecting high* lands at all in reference to rivers, if those rivers were to be divided by the line of boundary indiscriminately, either at their sources or in any part of their course V The line of boundary last mentioned is the due north line : and the passage is not quoted for the sake of its logic, but only to show, that the word " to divide," in the iirst part of the paragraph, means, to separate rivers from each other, whilst, in the latter part, the words <' to be divid- ed " mean, to be crossed or intersected. In order to give any semblance of plausibility to the British argu. ment, it would be necessary to prove, that there was no possible reason or motive for designating River St. Croix as having its mouth in the Bay of Fundy, and for contradistinguishing that Bay from the Atlantic Ocean, other than the purpose of limiting throughout the treaty the meaning of the term Atlantic Ocean, so as to exclude the River St John from the class of rivers contemplated by the treaty as falling into the Atlantic Ocean. If it can therefore be shown, that there was a natural reason, or spe- cial motive for inserting that designation and making that distinction in those clauses ; and that such reason and motive were applicable to those clauses alone, there will not remain even a pretence for asserting that the distinction, thus made in a part of the treaty for a particular purpose, can be construed to extend to another clause, to which the dis- tinction and the reasons for it were wholly inapplicable. The United States are declared by the treaty, to be bounded " south by a line to be drawn along the middle of St. Mary's River to the Atlantic Ocean. East, by a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy to its source ; comprehending all islands within twenty leagues of any part of the shores of the United States, and Ijring between lines to be drawn due east from the points, where the aforesaid boundaries between Nova Scotia, on the one part, and East Florida, ou the other, shall respectively touch the Bay of Fun- dy and the Atlantic Ocean." And it is urged, that the last designation of the Bay of Fundy must Atlantic Ocean. «t yy some ning, is the par* \e boun- Bt rivers ds which Dg high* videu by r in any and the ', that the separate be divid- ish argu. le reason th in the ! Atlantic reaty the St John into the , or spe- istinction licable to asserting larticular \ the dis- « south along by a line nouth in nding all United points, ■one part, of Fun- dy must have been for some other purpose, than in reference to the Eastern Boundary of the United States ; sincci had there not been another ob- ject in view, it was unnecessary to mention that Bay ; and the lines might have been described as correctly, by using the words, " due East from the points, where the aforesaid Boundaries between Nova Scotia, on the one part, and East Florida on the other, shall respectively touch the Atlantic Ocean." The Eastern extremity of the Southern Boundary of the United States was, in the first instance, designated to be the point where the St. Mary's River touched, or had its mouth, in the Atlantic Ocean. And the Southern extremity of their Eastern Boundary was likewise designated to be the point where the River St. Croix had its mouth in, or touched, the Bay of Fundy. All the Islands, between lines to be drawn due East from those two points, were afterwards declared to be comprehended within the United States. In designating, therefore, in the last sentence, those two points, precision of language requir^^d, that they should be described in the f>ama terms as in the preceding sentence, where they had been designated, as respectively touching the Bay of Fundy and the Atlantic Ocean. It would have been a most incorrect and inapposite use of language, after those points had thus been designated, to have immediately after described thciu as the points where the aforesaid Boundaries shall respectively touch the Atlantic Ocean. The apparent distinction, therefore, made in the last sentence, be* tween the Bay of Fuudy and the Atlantic Ocean, is only in reference to those two points, and arises from the manner in which they had been respectively designated in the preceding seutence. It is solely because the River St. Croix is, in the first instance, described as having its mouth in the Bay of Fundy, that it became again necessary and proper to desig- nate, in the last instance, the point from which the East line was to be drawn, (namely the mouth of the River St. Croix,) as touching that Bay. Why the River St. Croix was thus described, can alone require an explanation : and it will now be shown, that there was for this a natural, and on the part of the American Negotiators, an important reason. It has already been seen, that the River St. Croix was designated in the same manner in the original grant of Nova Scotia to Sir William Alexander, for the necessary purpose of describing, with precision, the position of a r'ver, then hardly known in England, and on which the name of St. Croix had been imposed, but a few years before by the French. The same designation was adopted in the description of the Boundaries inserted in the commissions of the British Governors of that Province. After the negotiators of the treaty of 1783 had finally agreed to confirm the River St. Croix, as the Boundary between the dominions •'■< ''.I oa Termaojthe Treaty. § ' of the two Powers, it was natural that they should, and it would indeed have been an extraordinary course, if they had not adopted the same terms, in describing the situation of the river, which had been so long in use in the public British documents, and which had been preserved uninter- ruptedly to the very date cf the treaty, (e) This mention of the fact that the River St. Croix had its month in that inlet of the Atlantic Ocean known by the name of Bay of Fundy, can have no more effect on other clauses of the treaty than in Alexan- der's Grant, or the Governors' Commissions. And it has already been shown, with respect to both, that notwithstanding thai specific mention by name of " Bay Fundy" and of " Gulf of St. Lawrence" in the de- scription of the boundary, both that bay and gulf were embraced by the generic term used in another clause. But there was also another and peremptory reason why the American negotiators must have insisted that the River St. Croix should continue to be designated as having its mouth in the Bay of Fundy. The repeated attempts, on the part of the crown, to encroach in that quarter on the chartered boundaries of the Province of Massachusetts' Bay, have already been mentioned in the Introduction. The Govern- ment of Nova Scotia, pursuing the same course, had in the year 1766 made a large grant of land to Francis Bernard, and others, xoeat of the Schoodic River, which has ultimately been decided to be the true St. Croix. That Government had, also, in the year 1767, granted to William Owing, and others, the island now known by the name of Campo Bello. That island is situated south of a line drawn due east from the mouth of the Schoodic. That of Grand Menan, accor- ding to Mitchell's Map, lies chiefly toest of the line designated in the Commissions of the Governors of Nova Scotia, as a line '' drawn from Cape Sable across the entrance of the Bay of Fundy, to the mouth of the River St. Croix," or Schoodiac. Both have finally been adjudged to Great Britain, as. being in 1783, or having theretofore been, within the limits of Nova Scotia. A conclusive proof of the 'general prevailing uncertainty as to what river was the true St. Croix, will be found in the. topographical des- cription of the Middle British American Colonies, published in 1776, by T. Pownall, M. P. for several years Governor of His Majesty's Province of Massachusetts' Bay, and which has been quoted with a high encomium in the British Statement. His words are : " The River Passam-Aqu&da, or Possam-Acc^da, which runs into a n " I (e) In the Commission to Govenor Parr, dated 29th July, 1782, the words are, ('bounded on the westward by a line drawn from Cape Sable across the entrance of the Bay of Pundy, to the mouth of the River St. Croix, by the said river to its lource," &o, Atlantic Ocean. 68 Is into a irords are, itrance of Iver to Us bay so called, is the supposed eastern boundary of New England ; to the east of thid begins Aqu&da or Nova Scotia ; an incertain River St. Croix is the nominal boundary. But as the French, according to their mode of taking possession, always fixed a cross in every river they came to* almost every river on this coast of Sagadahoc has in its turn been deemed by them La Riviere de St. Croix. Under equivocation of this general appellative, they have amused our negotiators on every occasion." It will be recollected that by ''Sagadahoc" is meant the ancient grant to the Duke of York, or that tract of land described in the Charter of Massachusetts, as lying between Nova Scotia and the (old) Province of Maine ; that it is thus laid down in Mitchell's Map ; and that as the « Coast of Sagadahoc" extends accordingly from the Bay of Passamaquod- dy to that of Sagadahoc, (or Kennebec,) it was according to Pownall un- certain, which of the rivers between those Iimi.ts was the true St. Croix. Whether the fact alleged there, with respect to the French, was correct or not, is immaterial ; nothing can show more forcibly how general was the opinion of the uncertainty arising from that cause, than to find it entertained by a late Govenor of the Province of Massachusetts' Bay, one of the men of the time best acquainted with American affairs, and asserted by him thirteen years after the cession by France of all her possessions in North America, when there was no longer any motiv* for misrepresentation, or cause for prejudice. In the same manner, Mr. Jay, one of the negotiators of the Treaty of 1783, in his deposition laid before the Commissioners appointed pursuant to the fifth Article of the Treaty of 1794, expresses himself as follows : « In settling the boundary line (described in the Treaty,) and of which the River St. Croix forms a part, it became a question, which of the rivers in those parts loas the true River St. Croix ; it being said that several of them had that name. They did finally agree that the River St. C>-oix, laid down on Mitchell's Map, was the River St. Croix which ought to form a part of said boundary line." So strongly impressed was that belief, that it is found again asserted, twenty years later, in the argument addressed in 1797 by the British Agent to the said Commissioners, (who were appointed only to decide which river was the true St. Croix,) when the Agent was arguing that the Schoodicand not the Magaguadavic, (Mitchell's St. Croix,) was the river intended by the Treaty of 1783. After adverting to an Act of Parliament of the year 1774, (16 Geo. III. ch. 10,) for restraining the trade of Massachusetts' Bay, and other colonies, in which it is enacted, " that the river which emptieth itself in Passamacadie or Passamaquoddy Bay, on the western side, and is com- monly called and known by the name of St. Croix River, be held and deemed, for all the purposes in this act contained, to be the boundary 6* I ^U 64 Ter*"* 0/ the Treaty. v- a: .V' line between the Provinces of Massachus )tts' Bay and Nova Scotia ;" and after asserting that the river thus designated, was that contemplated by the Treaty of 1783, and which ought accordingly to be declared the true River St. Croix, the British Agent proceeds as follows : " If this' principle were once departed from, there would be no check to contention on the subject, though it would be fortunate to His Majesty's interests if he were not thus bound ; as it might be clearly shown in that case, that the River Penobscot, once indiscriminately with the other rivers upon this coast called the St. Croix, was the true boun- dary by which Nova Scotia or Acadia was ceded to His Majesty by the Treaty of Utrecht, and ought in such ease, by the principles of the laws of nations, to be established as the eastern boundary of the United States." And he again says, in answer to the Agent of (he United States, who contended that the Magaguadavic was the true St> Croix : The argument of the Agent of the United States would certainly ap- ply with much greater force in proving the Penobscot to be the river agreed to ; as this river, besides being once knoion indiscriminattly with the other rivers by the name of St. Croix, has been the reputed boundary of Nova Scotia, and was contended for as such by the British Commissaries at Paris, in the year 1750, in their memorials concern- ing the limits of Acadia or Novn Scotia." It will be readily perceived, that since the River St. Croix had, by the Treaty of 1783, been declared to be the boundary, the Penobscot could not, in the year 1797, have been clai.ned as such on any other ground than as being itself the true St. Croix. The British Agent asserts that it ought, and would under the. Treaty, have been considered as such, had not a previous act of Parliament declared the St. Croix to be a river which emptieth itself into Passamaquoddy Bay. But that act would have given no security against an attempt on the part of Great Britain to claim the Penobscot as the true St. Croix and the boundary intended by the treaty ; since the River St. Croix, that empties itself into the Bay of Passamaquoddy, is, by the act of Parliament, to be held and deem- ed the boundary between the Provinces of Massachusetts' Bay and Nova Scotia, only for the purposes contained in the act ; and since that tem- porary enactment, made for the special purpose of embracing within the provisions of the restraining act all the population west of Passamar quoddy Bay, had expired with the act itself, {j) ^— — ^— . II ■ T I I I < — — ■■-■!■ II H I II I ■■ I ^ II — iWI IM— I MM ■ ■— — ^M^H^.^^ ■ ■!■■ — — ^— — (/■) The reason why the British i\.gent adverted to the Act of Parliament which was inapplicable, and not to the Treaty, is obvious. He was attempting to show that the westernmost of the two rivers that empty themselves into Passamaquoddy Bay, was the true St. Croix. The Act of Parliament had made a provision to that effect ; and the treaty had only generally declared the mouth of the River St, Croix to be in the Bay of Fundy« Atlantic Ocean, 65 Scotia ;" plated by I the true 1 be no te to His be clearly alely with rue 6oim- sty by the f the lawa 1 States^ latee, who tainly ap- the river riminaltly le reputed he British i concern- ad, by the scot could »er ground isserts that d as such, be a river act would 3at Britain y intended If into the and deem- and Nova that tein- iiig within f Passamar arnent which ting to show isamaqvioddy trisioti to that ver St. Croix It was that provision in the treaty itnelf, declaring the mouth of the River St. Croix to be in the Bay of Fundy, which afforded the security required iu that respect. Under the prevailing belief, that the designation of a River St. Croix, by that name only, was not sufficient to determine which river was the true St. Croix, and with the knowledge of the anxious desire evinced by Great Britain to extend, under color of that uncertainty, the boundaries of Nova Scotia to the Penobscot, the insertion of that provision iu the treaty was of paramount importance to the United States. By declaring the mouth of the River St. Croix to be in the Bay of Fundy, thr only question which might remain susceptible of doubt, was, which of the two rivers that empty themselves into Passamaquoddy Bay was entitled to the designation of River St. Croix ? The western ex- tremity of the last mentioned bay, or at the farthest of Grand Menan Is- land, forms also the Western extremity of the Bay of Fundy, as will be seen by Mitchell's Map, by the Map A, and by reference to what is de- scribed as the entrance of the Bay of Fundy, in Sir William Alexander's Grant. Not only was every pretence to claim the Penobscot, as the true St. Croix, removed by that provision, but no river whatever could be claimed as such, that lay west of Passamaquoddy Ray ; since, as will appear by Mitchell's Map, Machias River, which is the next in that dnection, lies west of the Western extremity of Grand Menan Island. li may, perhaps, be asked why, with Mitchell's Map before them, where the mouth of the River St. Croix is laid down, as it really is, in Passamaquoddy Bay, which is there designated by its dictinct name, that river was not, in the treaty, declared to have its mouth in that bay, instead of the Bay cf Fundy? Such spe''.i6c designation of the Passamaquoddy Bay was unneces- sary ; since it would not have rendered the description more precise, with respect to the obiect in view. Every river west of the Island of Grand Menan was equally excluded, whether the mouth of the River St. Croix was declared to be in the Bay of Fundy, or in that of Passama- quoddy ; and either designation would have lefl it equally doubtful, which of the two rivers was the true St. Croix. The negotiators being unacquriinted with the Indian names of the rivers in that quarter, could not have used expressions more precise than those of the designation which they adopted, and which had pre^iled from the date of Sir Wil- liam Alexander's Grant to that of the treaty. It will not now be denied that there were cogent reasons, abundant cause, for designating in a special manner, with as much precision as could be obtained from the materials in hand, the place where the mouth of the intended River St. Croix was to be found. Not- withstanding tho precautions taken iu that respect, the river contem- 'I i i kA 56 Terms of the Treaty. plated by the negotiators, that which in Mitchell's Map bears the name of St. C.oix, has not been coufii-med as the boundary between the two countries. The Schoodiac, the most xveslerly river that empties into Bay of Fundy, has been decided to be the true St. Croix. But from whn.t has been stated, and indeed, judging from the arguments adduced in support of the claim ^ow advanced by Great Britain, it may be fair- • ly presumov], that the field of English pretensions would have been ex- tended far beyond the Schoodiac, had it not been limited to rivers having their mouth in the Bay of Fundy. Can it be now pretended that this precaution, the special designation made for a particular and obvious object, necessary in order to obtain ihe object to which it applied, was intended and can be made to extend to another object, and to have an effect on the construction of another and distinct provision of the treaty 1 Can it be contended that, because it was necessary to specify in what part of the Atlantic Ocean the River St. Croix emptied itself, it follows, that when speaking, in another clause of the treaty, of that Ocean, not in reference to that part, but as contra- distinguished exclusively from the River St. Lawrence, it must be so understood, as to exclude that part of it, (the Bay of Fundy,) which, for that particular, and for no other reason, it had been requisite so to spe« cify ? It is obvious, that it is only in case there had been no necessity to use the designation of " Bay of Fundy" where it is used, that there would have been any color for the pretended inference, that that desig- nation was made for all the purposes of the treaty, or was intended to control the construction of any other of its provisions. It is believed, that it has been demonstrated in the most conclusive manner, not only that the line contended for on the part of Great Bri- tain is in direct violation of the clear and express terms of the treaty, but that no other line than that claimed by the United States, can be recon- ciled with that condition of the treaty which expressly requires the line to be on those highlands which divide rivers as there described. The objections raised against that line rests only on inferences ; on the as- sumed supposition, that the limited sense, in which the term Atlantic Ocean must be understood in one clause, must necessarily be the mean- ing of the term in every other clause of the treaty. It has been shown that the general assertion is irreconcilable with the ordinary rules of lan- guage, and that, as applied to the special case under consideration, it is altogether erroneous. And no stronger proof can be adduced of the un- soundness of the argument, than that it necessarily leads to the conclu- sion, that the boundary line prescribed by the treaty is impossible, and therefore irreconcilable with any intentions that can be ascribed tc the negotiators. J Atlantic Ocean. 57 It is urged in the British Statemeuts, that the argumeuts adduced on the part of Great Britain, with respect to the Bay of Fundy and the Ri- ver St. John, apply with still greater force to the Bay des Chaleurs and the River Ristigouche ; first, because that Bay does not open directly into the Atlantic, but into a second bay, namely, the Gulf of St. Law- rence ; secondly, because both the bay and the river are still further re- moved from the extreme eastern limit of the United States ; and also, because the gulf is mentioned in the treaty, in a manner which distin- guishes it entirely from the Atlantic Ocean, except in so far as it is a part of the Sea, of which the Atlantic Ocean also is a part. The facts, that the Ristigouche empties itself into the Gulf through the Bay des Chaleurs, and that its mouth lies far east of the due north line, are evidently irrelevant to any question at issue. The Gulf of St. Law- rence is designated by its specific name, in but one sentence of the trea« ty. It is provided, by the third article, "that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other Banks of Newfoundland ; also in the Gulf of St. Lawrence, and at all other places in the Sea, where the inhabitants of both countries used at any time heretofore to fish." So far from this provision having any bearing on the clauses, in which the rivers falling into the Atlantic Ocean are mentioned, that the only question which arises, is, why the Gulf of St. Lawrence was at all men- tioned, fince the provision would have apparently been as complete, ha'. *^^hat name been omitted, and the clause had simply declared the right to ike fish, to extend to *< all places in the Sea, where the inhabitants of both countries used heretofore to fish." The reason was, that the Gulf of St. Lawrence being a close Sea, the shores of which did belong to Great Britain exclusively, a doubt might have arisen whether, notwithstanding the general provision, the people of any other nation could fish there without an express stipulation to that efTect. Although the Gulf of St. Lawrence is actually declared in the clause to be a place in the Sea, it was deemed proper to name it ex- pressly, by way of greater caution, and in order to remove every possible doubt on that subject. And the meaning of the clause is, that the people of the United States shall have the right to fish ai all places in the Sea, where, &c., without even excepting the Gulf of St. Lawrence, and al. though this might be considered as under the exclusive jurisdiction of Great Britain. The Gulf of St. Lawrence is, in that clause, assimilated to the Banks of Newfoundland ; both being declared to be places in the sea : and vhat sea was meant cannot be doubted, unless it should be denied that the Banks of Newfoundland are in the Atlantic Ocean. I 68 Temu of the Treaty. ^i )S' , ; : h'r , I'liip ' H m ('ill 'm Numerous instances have already been adduced showing, that, both in its general sense and usual acceptation, the term Atlantic Ocean is always understood, as including the Gulf of St. Lawrence. And it must be recollected, that that Gulf is not liable to the objection, to be in another clause of the treaty contradistinguished from that Ocean. Amongst other proofs, reference may be made to the commissions of the Governors of New Brunswick, in which the Atlantic Ocean em. braces no other portions of the Sea than that Gulf and the Bay of Fundy. In the grant to Sir William Alexander, the term Seas is uniformly used instead of that of Atlantic Ocean. That the words are, as to the object of the grant, perfectly synonymous, and that they were so under- stood, appears from a publication of the year 1624, by the grantee him- self, where, speaking of the limits of his patent, he says, '< leaving the limits to be appointed by his Majesty's pleasure, with New England ; and on all other parts it is compassed by the Ocean and the great river of Canada." Another instance will be mentioned, where the meaning and effect of the expressions used were considered with deliberate attention. In the course of the Ghent negotiations, the British plenipotentiaries^ at the conference of 1st December, 1814, proposed the following article. " That all vessels and effects which may be taken, after the space of twelve days from the period of the exchange of the said ratifications, upon all parts of the coast of North America, from the latitude of 23 degrees north to the latitude of 47 degrees north, and as far eastward in the Atlantic Ocean as the 05th degree of west longitude, from the me- ridian of Greenwich, shall be restored on each side. That the term shall be thirty days in all other parts of the Atlantic Ocean, as far eastward as the entrance of the British Channel, and southward as far as the equinoctial line oi equator ; and the same time for the Gulf of Mexi- co and all parts of the West Indies. Forty days for the Brit- ish Channel and the North Seas ; the same time for all parts of the Medi- terranean. And one hundred and fitly days for all other parts of the world, without exception." The words used in reference to the period of twelve days, viz : " upon all parts of the coasts of North America," embrace, of course, all the ad- jacent Bays and Gulfs as far north as the latitude of 47 degrees. But it will be seen, by referring to any map, that that parallel of latitude touches the northern extremities of the Islands of Cape Breton and St. John, leaving, south of it, a very small portion only of the Gulf of St. Lawrence. Almost the whole of that gulf, (including the entrance of the river of the same name, the Straits of Belisle, and those which lie be- tween Cape Ray, of Newfoundland, and the North Cape of Cape Bre dtlantic Ocean. 69 l« upon ^he ad- Butit latitude \nd St. lof St. of the lie be- |e Bre I ton,) lies north of that latitude, and is not, therefore, included within the provision limiting the captures to twelve days. The Gulf is not included ii^ the forty days' provision, which applies only to the British Channel, the North Seas, and the Mediterranean. And it must, therefore, have been necessarily comprehended in the term of thirty days, which extends to all other parts of the Atlanlic Ocean as far east as the British Channel, and south aa the Equator ; unless it should be supposed to have been included in the term of << 150 days for all other parts of the world without exception :" and this supposition is untenable. The Gulf of St. Lawrence, particularly the Straits above mentioned and the entrance of the River St. Lawreuco, are the highway, and form the only outlets for the whole trade between Great Britain and Quebec; a trade which was, at that time, carried on exclusively in British vessels. To have, therefore, included that gulf within the terra ofl50 days, would have been tantamount to a permission to the American armed vessels and privateers, coming from ports within fourteen days sail of the entrance of the gulf, to intercept and capture, without any difficulty and with im- punity, the whole of that trade, during the space of more than four mouths. This is too absurd to have been intended by the British Pleni- potentiaries : and what proves, beyond doubt, that such was not their in- tention, is, that the period for allowing captures in the gulf was ultimate- ly made not longer but shorter than thirty days t which was effected, by extending the period of twelve days ^' upon all parts of the coast of North America," as far north as the latitude of 50 degrees. It must also be observed, that the British Plenipotentiaries, in makiug that proposal (of the Ist December, IS 14), had duly attended to the propriety of specifying, by their distinct names, those outlets or seaa respecting which there might be some doubt ; and which from long and common UF^age might be considered as not included within the term << Atlantic Ocean." Amongst others, << the Gulf of Mexico and all part# of the West Indies" were distinctly specified, as coming within the term of thirty days ; and the gulf of St. Lawrence waa not named, it being perfectly well understood, that it was of course included in the term <'all other parts of the Atlantic Ocean." It cannot, therefore, be doubted, that the rivers which fall into the Gulf of St. Lawrence, are clearly embraced by the term, "Rivers that fall into the Atlantic Ocean ;" and that the north-west angle of Nova Scotia and the boundary line, extending thence westwardly, designated in the treaty as being "on and along the highlands which divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean," may, in strict conformity with that provision, be placed on and along highlands dividing the tributary streams of the Riv- er St. Lawrence, from those of the River Ristigouche. «0 Terms of the Treaty. iii: The boundary between Nova Scotia and the Province of Quebec was not a subject coming within the purview of the Treaty of 1783 ; and it might be altered at any time subsequent to the treaty by the British Gov- ernment. Yet, the north-west angle of Nova Scotia, for whatever pur- pose alluded to, is, by the treaty, decilared to be formed by the intersec- tion of the due north line, with the highlands which divide the rivers emptying themselves into the River St. Lawrence from those that fall into the Atlantic Ocean. Such highlands must necessarily extend east- wardly from the summit of that angle ; and they are therefore acknow- ledged by the treaty to be, as they had been ever since 1763, the south- ern boundary of the province of Quebec, and the northern boundary of Nova Scotia. This, though only as a subsidiary argument, authorizes a reference to the effect which that boundary may have on the determi- nation of the north-west angle. It is preposterous to say, that a line described as dividing rivers from each other, may intersect the largest river in the Province, and that the bed of that river may, in any sense of the word be deemed << high- lands." And no Hue can be drawn, in an eastwardly or northteastward- ly direction from Mars Hill, or from any other point on the due north line south of the River St. John, which will not, within a few miles, intersect the River St. John and sink to its level. No line can be drawn in the same direction, from any point on the due north line south of the Kiver Ristigouche, which will divide the tri. butary streams of the River St. Lawrence from any other River, or which can divide, from each other, any other rivers, but rivers falling into the Gulf of St. Lawrence, from rivers falling into the same Gulf or into the Bay of Fundy. It is only from the termination of the due north line, which, as the United States maintain, is the north-west angle of Nova Scotia, that an eastwardly line can be drawn ; which, in conformity with the expressions used in the treaty and in the previous public acts of Great Britain, will, at least for some distance, divide rivers emptying into the River St. Lawrence, from rivers flowing in a differenit direction. This necessity common to the highlands of the treaty and to those of the Proclamation of 1763 and of the Quebec Act, identifiesi them together. And, since the last mentioned rivers can be no other than the tributary streams of the Ristigouche, which, through the Bay des Chaleurs, falls into the Gulf of St. Lawrence ; this also affords another conclusive proof, that the term Atlantic Ocean, as used in that clause of the treaty, must ne- cessarily have embraced the Gulf of St. Lawrence. In Jay, MgoiiatioM (/ 1782. 61 I $5. Negotiations of 1782. In the discussion respecting the intentions of the negotiators of the treaty of 1783, resort has been had principally to the negotiations which preceded the conclusion of the treaty, to the influence which former boundaries may have had on their deliberations, and to the knowledge which they had of the topography of the country. The Congress of the United States, on the 14th of August, 1779, agreed to a draft of instructions to the Commissioner to be appointed to negotiate a treaty of peace with great Britain. As part of those instnic tions, the boundaries of the United States are declared to be as follows, viz : " These States are bounded north by a line to be drawn from the north-west angle of Nova Scotia, 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 north westernmost head of Connecticut River ; and east, by a line to be drawn along the middle of St. John River, from its source to its mouth in the Bay of Fundy If the eastern boundary above described cannot be obtained, you are hereby empowered to agree, that the same shall be afterwards adjusted by Com- missioners, to be duly appointed for that purpose, according to such line as shall be by them settled and agreed on, as the boundary between that part of the State of Massachusetts' Bay, formerly called the Province of Maine, and the Colony of Nova Scotia, agreeably to their respective rights." In a report of a Committee of Congress, presented 16th of August, 1782 ; it is confessed that the eastern part of Massachusetts, " which goes by the nt.me of Sagadahock, cannot be proved to extend to the River St. John as clearly as to that of St. Croix." Congress had, previously, by their final instructions of the 15th of June, 1781, modified those of the 14th of August, 1779, and direct- ed their Ministers « to accede to no treaty of peace which should not secure the independence and Sovereignty of the Thirteen States, or in- consistent with the treaties subsisting between them and France ;" upon every other subject tying them up by no absolute and peremptory direc- tions ; but still referring to the former instructions as expressive of the desires and expectations of Congress. In conformity with those instructions, Benjamin Franklin and John Jay, two of the Commissioners of the United States, in the first propo- 6 ) V 62 Intentions of the JVegotiators, I ft Pl p ... sitions made by them, and agreed upou on the 8th of October, 1782, be* tween them and Richard Oswald, the British Commissioner, (but to be submitted to His Britannic Majesty's consideration,) defined die Boun- daries of the United States in precise conformity with the first part of the instructions of 14th August, 1779. But these being objected to, the other alternative, as contained in -the subsequent part of the same instructions, was substituted, agreed to be> fore the articles were sent to London, and a memorandum to that effect annexed to them in the following words, viz : " Alteration to be made in the treaty respecting the Boundaries of Nova Scotia, viz : east, the true line between which and the United States shall be settled byCommis. sioners, as soon as conveniently may be afler the war." (o) Counter-proposals were transmitted from London, which have not been preserved. (6) It appears only that much contestation took place about the Boundaries and other articles ; the British contending, at first, that Nova Scotia should extend to the River Kennebec ; then to Penob- scot; and, at length, agreeing to the River St. Croix ; and one of the American Ministers at first proposing the River St. John, but on the observation that St. Croix was the River mentioned in (c) the Charter of Massachusetts' Bay, agreeing with them to adhere to the said Charter. Whatever may have passed in conversation, or in the course of the negotiations, it is certain that the American Commissioners had first pro- posed the River St. John as the Boundary ; that, for that proposal, they substituted that of leaving the true boundary line between Nova Scotia and the United States, to be settled by Commissioners, after the peace, to which the British Commissioner agreed provisionally ; that the British Government rejected both propositions ; and that, it was ultimately agreed, instead of leaving the boundary in that unsettled situation, to define it in the treaty itself. The following particulars are declared, in the British Statement, to be collected from those various instructions, propositions and transac- tions. 1st. That the mouth of the River St. John was, from the first, speci- fically described as being in the Bay of Fundy, while tlie Bay of Fundy was described, as distinct from the Atlantic Ocean. 2dly. That the north-west angle of Nova Scotia was deliberately placed (a) See the Article at large in the Introduction. (A) The Paper No. 2, mentioned in Dr. Franklin's Letter of 5th December, 1782, has not been found in the Archives of the United States, und has not been adduced in evidence by the British Government. (c) The Rivsr St. Croix is not mentioned in that Charter. The statement should have been, that it must be inferred from tho Charter, as connected v^ith other docu- ments, that tlie St. Croix was the Boundary. m jyegotiations of 1782. ea speci- ■ Fundy placed per, 1782, adduced Int abould Iher doeu- « ^ : by the Americans themselves at the source of the River St. John ; which source and north-west angle were by them taken as identical. 3dly. That the highlands intended to divide the rivers falling into the Atlantic Ocean from those falling into the St. Lawrence, are (in the American projet) described in the very same terms which they now re- tain in the definite treaty of 1788. Whence it is inferred, " that the highlands designated in the projet, being then intended to divide the Androscoggin, Kennebec, and Penob- scot F ivers, alone, from those falling into the St. Lawrence, to the exclu- sion of the St. John, the highlands so described are still intended to di- vide the same rivers ; and that from those rivers, therefore, the St. John is still intended to be excepted." The place of beginning, or north-west angle of Nova Scotia, is in the projet, stated to be at the source of the River St. John, and in the trea- ty, at the intersection of the highlands with the line drawn due north from the source of the River St. Croix. If the source of the River St. John, contemplated by the projet, was, as asserted on the part of Great Britain, the source of the southernniost branch of that river, or supposing it to have been the source of either, the uorth>west, the west, or the south west branch of the river, (thus called in Map A.) in either case the source thus contemplated, or north-west angle of Nova Scotia of the projet, was from ninety to one hundred and twenty miles west of the due north line. It cannot therefore be seriously argued that, because the north-west angle of Nova Scotia of the projet, and the highlands extending from that point to the Connecticut, might not divide any other rivers than the Penobscot and Kennebec, (to the exclusion of the St. John,) from the rivers falling into the St. Lawrence ; the north-west angle of Nova Scotia of the treaty (distant about one hundred miles from that of the projet according to the British,) and the highlands beginning at that point and extending thence to the Connecticut, must divide from the Rivers falling into the St. Lawrence, no other rivers but the Penobscot and the Kennebec, to the exclusion of the St. John. But the source of the most southern branch of the St. John was not known in the year 1782. The first discovery of that, apparently the long- est branch of the river, is due to the explorations made in the year 1818, 1820, under the Ghent Commission. And, if known in 1782, it is im- possible that it should have been that which the United States had in view. The source contemplated in their projet was on the highlands, which di- vide the rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean. And the southern source above described, lies more than ten miles East of any part of those high- it fc fi Ill 64 Intentions of the Negotiatora. lii ^ IIP!; 4] "M I I ill i I: ^ 1^ lands, and issues from the highlands \vhich divide the Penobscot from the St. John. . On the contraiy, independent of another circumstance which will be immediately adverted to, the place of beginning or north-west angle of Nova Scotia was, in conformity with the terms of the projet, placed on the very highlands which are described as dividing the St. Lawrence from the Atlantic Rivers, including therefore the St. John among the rivers falling into the Atlantic. And, unless it was proved, which can- not be done and is highly improbable, that the source contemplated in the projet was the nearest possible to some one source of the Penobscot, it is evident, that the highlands of the projet must for some distance have divided waters of the St. John from those of the St. Lawrence. It is further insisted, that, as the original claim on the part of the Uni- ted States did not extend beyond the River St. John ; and as a new and more contracted line was ultimately agreed on and substituted for that first proposed line, which had been rejected by Great Britain ; it is im- possible to suppose that that new line should have left to the United States a territory north of the River St. John, not included in their first claim. The American claim alluded to was avowedly founded on the errone- ous supposition, that the chartered boundaries of Massachusetts* Bay ex> tended along the Sea coast eastwardly to that river. The claim appears to have been altogether unfounded. The words of the Charter are " the Province of Maine, the territory called Accada, or Nova Scotia, and all that tract of land lying between the said territories of Nova Scotia and the said Province of Maine." The only public document which at the date of the charter, had assigned any limits to Nova Scotia, was the grant to Sir William Alexander, which is bounded expressly on the west by the River St. Croix. Since the year 1763, the British government had designated the River St. Croix and a line drawn due north from its source to the dividing highlands, as the western limit of Nova Scotia. That line wa'i adopted in the treaty, and substituted in lieu of the River St. John proposed in the projet. The effect was, to leave to Great Britain a portion of terri- tory along the sea shore. West and South of the River St. John, which was included, and to leave within the United States an inland portion of territory beyond the River St. John, which was not included v/ithin the original American claim. The fact, therefore, principally relied on in the British Statement, is, that the River St. John having been decidedly rejected by Great Britain as a boundary, the line substituted must necessarily have been more con- tracted than that which had thus been rejected. And it is accordingly asserted} that the territory beyond the St. John, not included within the P': ^Negotiations of 1782. 65 ;rroin m be igle of led on vrence )g the :h can- ated ia obscot) cehaTe ii9 Uni- tew and for that t is im- United tieir first J errone- Bay ex- I appears are " the L, and all :otia and ich at the [, was the on the le Eiver dividing adopted Iposed in of lerri- |n, %vhich |d portion 3d within kment, is, \i Britain lore con- cordingly nthin the original American pretensions, and which the United States now claim under the treaty, contains 700 square miles more than that portion of territory West of the River St. John, originally claimed by them, and which by the treaty, has fallen within the dominions of Great Britain. In framing this argument, and in the assertion itself, every conside- ration belonging to the subject, seems to have been forgotten or ne- glected. The framers of the treaty had not the benefit of the surveys and maps annexed to the proceedings of the Commissioners, from which the com- parative contents of the two territories in question have been calculated in the manner mentioned in the British Statement : and they could have had no other data for such calculation than the maps existing at that time. Supposing Mitchell's Map to have been that on which they relied, the most south-westerly source of the River St. John, which takes its rise in the dividing highlands, and that which gives the result most favor- able to the British mode of calculating, is made, in that map, to termi- nate in a small lake, the western extremity of which is in about 69o 18' west longitude, 46^ 38' north latitude, and about thirty-four miles south- east from Quebec, {d) It will be easily verified, making the calculation according to Mitch- ell's Map, and taking that south-westerly source to have been the north- west angle of Nova Scotia contemplated in the first instructions of Congress, that the territory north of the St. John, not included within the original American claim, instead of containing seven hundred square miles more, is considerably less in extent than that portion lying west of the said river, which was claimed by the United States, accord- ding to those first instructions, and which by the treaty has fallen with- in the dominions of Great Britain. The British argument, being sole- ly grounded on the contrary supposition, is therefore destitute of any foundation. Yet this calculation is the most favorable to the British argument that could have been selected. It is utterly impossible that either the most southern, and then unknown, source of the River St. John, or even Mitchell's westernmost source of that river, could have been that which was contemplated in the American projet, as the north-west angle of Nova Scotia. It was there proposed that the River St. John, from its source to its mouth, should be the boundary between the United States and Nova Scotia, leaving within the United States all the territory on (rf) Thi» must have been the branch designated in Map A, as the west branch of the St. John, as they nearly agree both in latitude and in the distance and bearing from Quebec. The difference of nearly one degree in longitude arises from an error, which pervades the whole of Mitchell's Map. 6» 1^?, 66 Intentions of the Negotiators. iv 'ill*! i : - ', :i; ll'! M' liii lijI'^S the right bank, and giving to Nova Scotia the whole country on the lefl bank of the river, from its source to its mouth. It will appear at once, from an inspection of the map A, and of Mitchell's Map, that, from oriher of those sources to the place where the due north line intersects the St. John, the whole country on the south-east side of the river would h'"'e been thus within the boundaries of the United States, and that on the north-wek. side within those of Nova Scotia. Whatever breadth miig;ht be allotted to that Province in that quarter, it is evident that its north-west angle must have been at some place bearing north-west from the said point of intersection, and far north, therefore, of either of those sources ; the westernmost being*, on that supposition, the western, and the southernmost, nearly the south-west, instead of the north-west angle of Nova Scotia. It must be further observed that, in the rejected article first proposed by the United States, the said States are declared to be bounded, ecwf, by a line to be drawn along the middle of the St. John River from its source to its mouth in the Bay of Fundy. And it will be perceived by reference to Mitchell's Map, that the River St .Tohn, from its western- most source, as designated in that map, to th* north line, and even for some distance ^i^y^nd it, would have been, according to the projet, the northern, instead of the eastern boundary of the United States. Whilst on the contrary, if the source of the St. John, designated in Mitchell's Map by the name of Nepissigouche was, as it is believed, the source intended by Congress and by the American negotiators,, the River St. John from its source to its mouth, would have been with great propriety, described as the eastern boundary of the Unites States. The only argument against that otherwise most probable supposition, is that the branch of which the source is Mitchell's westernmost source, is in his map called the River St. John. The spot on Mitchell's Map, called Nepissigouche, and his adjacent Lake Medusa (corrupted from Madawaska,) are proved to be the Temis- conata Lake and Portage, from their connection with the correspond- ing Pistole and Wolves Rivers, which empty into the St. Lawrence. The inference drawn in the British Statement will appear still more extraordinary, if the comparative value, at the date of the treaty, of the tracts of country in question, is taken in consideration. Even now, when, after the lapse of more than forty years, the inland country has with the great incre£ise of population, and approximation of settle- ments, acquired a proportionate value and importance ; its soil would, acre for acre, be considered as far less valuable than that of a territory, the greater part of which bordej'ii on the sea coast and tide water. But, in the year 1782, when the attention of both Powers had been and was so entirely turned to the country on the sea-shore, along ^egotialions of 1782. 6T le left once, , from 3Tsects would that on breadth that its st from if those rn, and 8t angle iroposed ed, taat, from its eived by western- ed even le projet, 1 States. 'Dated in eved, the tors,, the ith great The is that JS rce, IS in adjacent I Temis- respond- rence. till more ty, of the ren now, untry has t>f settle- its soil tiat of a I and tide irers had Ire, along which alone there were any settlements at the time, is qoite preposter- ous to suppose that believing the two tracts to be nearly equal in extent, their value could have been, in the opinion of either party, even a subject of comparison. It is insisted that, independent of the comparative value of the two tracts of country, it cannot be supposed that, after having rejected the proposal to make the River St. John the boundary, and after having yielded her claim to the territory between the St. Croix and the Penobscot, Great Britain could have consented to give up tfie communication be- tween her two provinces, Canada and Nova Scotia now New Brunswick. It must be recollected, that the northern boundary, in that quarter of the United States, as described by the treaty of 1783, is precisely the same and described in the same words, as the southern boundary as- signed, by the proclamation of 1763, to the government of Quebec, or Canada. And it follows, that the intentions must be found, not in the relative situation of the contracting Powers, in the year 1783, when the ancient line was confirmed, but in the object which the British Govern- ment must have had in view, in the year 1763, when the southern boun- dary of the Province of Quebec, such as it was confirmed by the treaty of 1783, such as it still continues to be to this day, was first established. The sole object of the Proclamation of 1763, is, in that respect, what it professes to be, viz : to provide generally for the Government of the valuable acquisitions secured to Great Britain by the late treaty with France, and specially for that of Canada, by assigning proper bounda- ries to the Province of Quebec, which is erected with that view. No- thing more was necessary for that purpose than to include, within those limits, the French inhabitants known to have been, till the conquest of Canada, under its Government. It was sufficient, in order to effect that object, to include within the new Province the whole Country below Quebec, and nothing more than the country which is watered by the tributary streams of the River St. Lawrence, or what Geographers call the basin of that river. The Ridge, or by whatever other name called, in which those tributary streams have their sources, was not only a natural, but the most natural Boundary which presented itself. By deviating from its eastern extremity, so as to make the Bay des Chaleurs the Boundary in that quarter and thereby embrace the Gaspe settlements, all the French inhabitants were included. This was the only purpose that could then have been intended. The communication between Quebec and Nova Scotia, by the means of the River St. John, was wholly foreign to the determination of the Boundaries of the new Gov- ernment, since, in the year 1763, when Massachusetts was part of the British Empire, it was quite immaterial to Great Britain, through which of her Provinces such communication should pass. 68 Intentions of the Negotiatora. M ■u i The aeparate and secret article, annexed to the provisional articles of November, 1782, supplies another and satisfactory answer to all the ar- guments derived from the pretended impossibility, that Great Britain ever could have acceded to the north-eastern boundary, as now claimed by the United States. It will be remembered that it was provided by that article that, in case Great Britain, at the conclusion of the war, should recover or be put in possession of West Florida, the line of north boundary between this said province and the United States should be a line, drawn from the mouth of the river Yassous, where it unites with the Mississippi, due East to the River Apalachicola. This article was extremely disadvantageous to America, since it would have removed her southern boundary, on a length of about 830 miles, near one hundred miles, further north, and yielded to Great Britain a territory containing more than twenty millions of acres. It must have proved particularly offensive to Spain : it was acceded to with great re- luctance by the American Commissioners, and, contrary to their instruc tions, kept secret from the French Government. The principal rea- son which induced them to agree to it, is stated in their letter to their government of July, 1783, in which they say: " Mr. Oswald was desirous to cover as much of the eastern shores of the Mi':3issippi with British claims as possible, and for this purpose we were told a great deal about the ancient bounds of Canada and (Louisi- ana, &c., &c., &c. The British court, which had probably not yet adopted the idea of relinquishing the Floridas, seemed desirous of an- nexing as much territory to them as possible, even up to the mouth of the Ohio. Mr. Oswald adhered strongly to that object, as well to ren- der the British Countries there of sufficient extent to be (as he express- ed it) worth keeping and protecting, as to afford a convenient retreat to the Tories, for whom it would be difficult otherwise to provide. And among other arguments, he finally urged his being willing to yield to cur demand to the east, north and west, as a further reason for our grati. fying him on the point in question." Another singular argument has been adduced, in order to sustain the claim of Great Britain to the whole disputed territory. It is asserted in the first British Statement, that the main object of the treaty was to trace this part of the northern frontier of the United States, in such a manner as to thro^/ certain rivers entirely into their territory ; that it was evidently determined, to divide from each other, at their sources, the several great rivers assigned to each power : that therefore those rivers were not to be intersected by the line of boundary in any part of their course : that throughout the discussions relating to the limits of the United States in that quarter, both parties clearly directed JS'egotiationa of 1782. stain the ^ct of the States, Brritory ; jat their Itherefore in anv to the I directed their attention principally to rivers, and moreover, to rivers in their whole extent. Thii, it is said, appears distinctly from the proceedings of the old Congress and from the negotiations of 1782, Nothing n\ore appears, in that respect, from those proceedings and negotiations, than the re- jected proposal, to make the River St. John tlie boundary. Not the slightest proof is adduced that the rejection implied a claim to the whole basin of the river. And the intentions of the parties cannot be shown by a gratuitous supposition. In order to sustain the assertion, that it was the intention of the nego* tiators, that the Rivers in their whole extent should be assigned to each Power respective1y,'and therefore that they should not be intersected by any of the boundary lines, it is said in the British Statement, that the silence which the negotiators have kept with regard to the intersection of the River St. John is very difficult, if not impossible, to explain ; that, if it had been intended, that the due north line should cross the River St. John, there can be no doubt that such a peculiarity would have been specifically adverted to. When making that objection, it mast have been forgotten, that both the direction and length of a straight line are determined by the two points at its two extremities ; and that, in this instance, the point of departure, the direction of the line and the other line at which it ter- minates are all given, and determine the length of the due north line with such precision, as to render any further description superfluous. Although it was equally well known, that the boundary along the paral- lel of the 46th degree of north latitude would cross Lake Champlain, and that the southern boundary would also cross the Mobile, those pecu- liarities are not specifically adverted to. An appeal is then made to the preamble of the Treaty, in the follow- ing words : The preamble to the Preliminary Articles of 1782 says, that the provisions of that Treaty are founded on the basis of '< recipro- cal advantages " and " mutual convenience " — on the principles of "liberal equity and reciprocrity," — with the express design of " exclu- ding partial advantages, those seeds of discord ;" and the introduction to the very article respecting boundaries declares, in equally express terms, that those boundaries are adjusted <' with a view to prevent further disputes." "Is it credible that, in the very face of theso earnest declarations, the framers of the treaty should have adopted a Line of Boundary, which in the first place, while it did really secure to the United States, the whole of each river emptying within their territory, would deprive Great Britain of a full half of one, and a portion of another, of the largest rivers emptying within hers ? and, on the other hand, would give to id •ii f -'.^r 70 Intentions of the Negotiators. m ri '' Great Britain the lower half and entire command of the navigation of the largest river in the whole country, (the St. John) by which alone the whole timber and produce of the territory on the upper half of the same river could be conveyed to the sea, while that upper half was left to the United States 1" It ii obvious from the tenor of the Article, that the disputes on the subject of boundaries, intended to be prevented, were those which might have arisen, not from their not being every where equally convenient to both parties, but from their uncertainty, had they been left subject to the doubtful interpretation of the indefinite term " territorial rights," instead of being specially and precisely described. The proper answer, however, to every inference attempted to be drawn tVom such general expressions, used in a Preamble, or as introductory, is, that their true intent can only be found in the actual conditions of the treaty, instead of deducing the meaning of those conditions from conciliatory expressions of vague import, which are usual and proper in most treaties of peace. The general assertion, respecting the intentions of the framers of the Treaty, is not only unsupported by proofs, but it is disproved by the decisive fact, that it was not adhered to, with respect to any other part of the Boundary. From the Connecticut River to St. Regis, on the River St. Lawrence, the Boundary is a due west line, along the 45th parallel of North latitude which crosses Lake Champlain, and several othtr tributary streams of the River St. Lawrence, leaving within the United ^States, the upper branches and the sources, and within the dominions of Great Britain, the mouths and lower portion of those streams. From St. Regis to the western extremity of Lake Superior, all the rivers from the south, which fall into the River St. Lawrence, or into the great lakes with which it communicates, are within the boundaries of the United States : Whilst all the rivers which, flowing from the south, fall into the River St. Lawrence below St. Regis, and all the riv' 3 without exception, which flow from the north, either into the great lakes, or into that river, are, together with the mouth and sole outlet into the Sea of that immense body of waters, assigned to Great Britain. All the inconveniences, with respect to navigation, or to a division, between the two Powers, of a country lying on the banks and waters of the same Rivef, which are ascribed, by Great Britain, to the treaty boundary line, so far as it affects the River St. John, apply, with equal and greater force, to the River Si. Lawrence, and to the extensive coun- tries situated on its waters. And, on the principle she assumes, sho might, with equal consistency, justice, and adherence to the terms of the treaty, claim all the territory, on the south of the River St. Law- iiiiii! J^egoiiationa of 1782. 71 ■I" I a of klone f the IS left n the might entto to the n stead I drawB uctory, ions of is from proper mer« of d by the her part iwrence, I latitude reams of e upper Britain. \, all the or into lundaries Ifrom the all the [the great atlet into Itain. [division, waters ^e treaty [ith equal Ive coun« les, she Iterms of 3t. Law- rence, and of its great reservoirs, which belongs to the United States, as sho now does the upper half of the basin of the River St. John, which lies west of the line drawn due north from the source of the River St. Croix. In the same manner the Southern boundary, from the banks of the Mississippi, extends to the source of the St. Mary's River, crossing, not far from their mouths, the great Rivers Mobile and Apalachicola, and numerous other considerable streams, leaving the mouths of all those rivers, together with a narrow slip along the sea coast, without the Boun- daries of the United States ; whilst the whole of the upper, or more than nine-tenths of the country watered by those rivers and their tributary streams, is, by the treaty, declared to be within tu^ir dominions. The Rivers St. Croix, and St. Mary, from their mouths to their sources ; the River Connecticut, from its source to the 45th degree of North latitude ; the Mississippi, from the latitude of the Lake of the Woods to that of the 31st parallel ; the water communication between 7-iake Superior and that of the Woods ; that Lake ; a due West line from its North-western extremity to the Mississippi, and finally the due North line from the source of the River St. Croix to the Highlands, complete the description of the boundaries prescribed by the treaty. Not a single portion of the Boundary is described by the treaty, as dividing or separating from each other the rivers flowing in different di- rections ; that alone excepted, which extends from the North-west angle of Nova Scotia to the North-westernmost head of Connecticut River. And the United States contend, that, through its whole extent between those two points, and in no other part of it, the Boundary line must di* vide or separate the rivers as described in the treaty. When (irreat Britain insists, that the inteation of the negotiators was to divide the rivers, so as to assign to each Power, respectively, the whole country situated on rivers, the mouths of which were in its territory ; it is for the purpose of drawing the extraordinary inference, that the only portion of the Boundary which is expressly designated by the treaty as dividing, was not intended, to divide or separate the rivers that empty themselves into the River St. Lawrence, from those that fall into the At. lantic Ocean. Let it be further observed, that, with respect to the waters of the River St. John, the British claim is now asserted in direct contradiction to the suggested intention. It was known to the framers of the treaty, as will appear by Mitchell's Map, that the due north line must necessarily cross the Western tributary streams of that river. The line does accordingly cross some of its waters, within two miles of the source of tlie St. Croix, and before it reaches Mars Hill, no less than three of those tributary streams, viz : Bull's Branch, the River MeduxncUcag, and the Presqu ■i M W If k-j,'ii 72 Intentions of the Negotiators. isle River. The country on the West and along thirty eight miles of the due !North line, watered by those three rivers, is acknawledged by Great Britain to be within the territories of the United States, although the mouth of that river is within her dominions. Mi Wi 1 1', I J* 1 § 6. Former Boundaries. The United States have, in reference only to the intentions of the ne- gotiators, appealed to the coincidence of the boundaries of Massachusetts according to its colonial charter, with those determined by the treaty. His Britannic Majesty, by the first article of the treaty, acknowledged the independence of the thirteen United States, designating each by i's colonial name ; (Massachusetts' Bay and not Massachusetts, Rhode Island and Providence Plantations instead of Rhode Island,) and relin- quished all claims to the territorial rights of the same, and every part thereof." The principle, or basis, on which the Parties had agreed to treat, is clearly expressed : the intention was, that each state should retain the territory to which, as a colony, it had been entitled. But it is provided in express terms by tlie second article, that in order *' that all disputes which might arise in future on the subject of the boun- daries of the said Uiited States may be prevented, it is hereby agreed and declared, that the following are and shall be their boundaries, viz ;" and the description of the boundaries immediately follows. There can be no doubt that, though the basis or intention was indicated in the first article, the determination of the boundaries in the second article is con- clusive and binding on both Parties. Whether those boundaries em- braced more or less than had been contained within the chartered limite of Massachusetts' Bay, no appeal can be made from the terms of the se- cond article to the general intention declared in the first, unless a doubt should arise respecting the true meaning of those terms. The United States deny, that theie can be any doubt in that respect ; they rest their claim on the terms of the treaty ; and they resort to the intentions clearly declared in the first article, only in reference to ar- guments attempted to be drawn from presumed probabilities and the sup- posed intentions of the negotiators. The public acts, by virtue of which the Colony of Massachusetts' Bay claimed the disputed territory embraced, within the boundaries establish- ed by the treaty, have been stated at large in the introduction. Nova Scotia and all that tract of land, lying between Nova Scotia miles of Iged by silthough •f the ne- achusetts treaty, owledged ch by i*8 ta, Rhode ind relin- very part agreed to uld retain t in order the boun- ty agreed ies, viz ;" There can n the first ;le is con- aries em- red liraitB of the se- 39 a doubt t respect ; 3ort to the ce to ar- d the sup- setts' Bay establish- )va Scotia Former Boundaries. and the River Kennebec, which was the eastern boundary of tthe old Province of Maine, were annexed, by the charter of 1691, to the Colony of Massachusetts' Bay ; reserving to the Crown the right of approving or rejecting grants of land by the Provincial government, of any lands lying or extending from the River of Sagadahock (Kennebec) to the Gulf of St. Lawrence and Canada Rivers, and to the main sea north- ward and eastward, (e) All the French possessions before the war having been restored to France by the treaty of Ryswick of 1697, Nova Scotia, which was clear- ly embraced in the restitution, was severed from the British dominions ; and the clause of the charter, which annexed thai territory to Massachu- set'.s, was virtually repealed, and became a nullity. The understanding of the British Government of the extent of that restitution, will be found in the following sentence of a letter from the Lords of the Board of Trade, datefd 3(ith of October, 1700, to the Earl of Bellamont, the Governor of Massachusetts, viz : " As to the boundaries, we have always in.<)isted, and shall insist upon the English right, aa far as; the River S*. Croix." France, by the Treaty of Utrecht of 1713, ceded to Great Britain No\a Scotia or Acadia, with its ancient boundaries ; but that province, instead of being again annexed to Massachusetts' Bay, was erected by Great Britain into a separate government, without any description of its 'imits till the year 1763. Subsequent to the treaty of Utrecht, the British O' vemme t, several times, called in question the title of Massa. cbusetts to the territory between Nova Scotia and ihe River Kenn»ibec. The law otficers of the Crown, to whom the case had been referred, gave in the year 173i, a decided opinion in favor of Massachusetts, whu;h appears to have been confirmed by an order in council. Yet, in the year 1763, when the limits of Nova Scotia were determined by an act of the Crown, the following words were added to the commission of the Governor, " although our said province has anciently extended and does of right extend as far as the River Pentagoet or Penobscot." This reservation was not inserted, since the year 1765, in the subse- quent commissions of the Governors of that Province, In the same year, 1763, the Board of Trade, in a letter to Governor Bernard of Mas- sachusetts, and in reference to a grant made to him by that Province, of an island lying east of the River Penobscot, again expressed a doubt, how far all future consideration of the right of Massachusetts wns pre- cluded by the order of Council, grounded upon ttie opinion of the attor- ney and solicitor-generwl in 1731. And when that grant was, in the year 1771, confirmed by the Crown, it was with the following proviso, viz : ''Provided uevcktheless, that his Majesty's approbation and confir- mi (ff) By reference to the cliarter, it will be seen ihut the boundary of the Provjnca towards the Sea is designated as *' the Athmtic or vjestern iie& or Ocean." 'I III liil (HI 74 Intentions of the JVegotialors. ination of the said Grant shall not have the effect to prejudice the right of the Crown, in and over the said territory of Sagadahock, both as to the dominion and the property of the soil." Thus far, the general claim of Massachusetts to the territory between Kennebec and Nova Scotia, though called in question by the Crown, as far as the Kennebec, or at least the Penobscot, stood on unshaken, legal grounds, and could not have been disturbed, according to the aforesaid opinion of the Law Officers of the Crown, otherwise than by legal pro- ceedings, which were never attempted. But doubts might have been suggested, before the year 1763, respecting the limits of the Province of Nova Scotia. Before that year, the only public act emanating from the British Go- vernment, which designated the limits of Nova Scotia, was the Grant of 1621 to Sir William Alexander. The western boundary of the grant is, the River St. Croix, from its mouth in the Bay of Fundy, to its most re- mote western spring or source ; from thence, a direct Hue running to- wards the north, to the nearest road, (navium stationem) river, or spring emptying itself into the great River de Canada ; and from thence pro- ceeding eastwardly along the sea shores of the said River de Canada, &c. It had not yet been ascertained which was the river intended by that call- ed St. Croix ; and the line to be drawn from the western source of that river to the River St Lawrence, was expressed in vague terms. It was suggested in the second British Statement, that the words of the Grant might n \ to a line, drawn from the source of the St. Croix to the head wat( s of the River Chandiere. The obvious an- swer to that construction of the terms of the Grant is, that such a line would have been towards the west, and not towards the north. But without insisting on that suggestion, it is asserted, that the line, drawn towards the north to the nearest part of the St. Lawrence, would strike that river, far to the west of that point where a due north line would inter- sect it. This is true ; but the British Government had never maintained, declared, or suggested, that the line ought, according to the terras of the Grant, to be run in that direction. On the contrary, when, for the first time since the date of Sir William Alexander's Grant, the British Gov- ernment defined the limits of Nova, Scotia in the commissions of the Governors of that Province in the year 1763, the line was described, as running due north from the source of the River St. Croix, and without designating, from which of the sources of the river the line was to run. Even prior to that date, the line is represented as a due north line, in Mitchell's Map, which was undertaken with the approbation of the Board of Trade, and received its sanction, under the signature of John Pow- nall, its secretary. Had it been otherwise, had the British Government maintained, prior Former Boundaries. 76 Id, prior to the treaty of 1783, that the line in question ought, in conformity with the grant, to be a north-west line ; and admitting that the Crown had the right to decide that question ; the effect would have been to cut off from Massachusetts the north-eastern portion of the disputed terri- tory. But the northeast angle of that Province would still have been on the banks of the River St. Lawrence. Nothing of the kind had, however, been done or even suggested by the British Government. It further appears, by the letter from Jasper Mauduit, agent in England for Massachusetts' Bay, to the general court of that Province, dated 9th June, 1764, that, if the Province would cede to the Crown all pretence of right or title they might claim under their Charter to the lands on the River St. Lawrence, intended to form part of the Government of Quebec, the Crowu was disposed to waive all further dispute concerning the lands as far as St. Croix, and from the Sea Coast of the Bay of Fundy, to the bounds of the Province of Quebec : reserving to itself only the right of approving grants of land, as before. Under all these circumstances, and principally because the limits be- tween Massachusetts on the one part, and Nova Scotia and Canada on th3 other part, had been actually fixed by the British Government in the year 1763, the United States conteiid that, when the negotiations were opened in 1782, the former Colony, now state of Massachusetts, had a strong, though still questioned title to the disputed territory, which is now claimed, as belonging of right to the said States under the terms of the treaty. That this claim of Massachusetts was discussed by the Negotiators, and was the subject of long debates, is a matter of record. And so tenacious and confident were the American Ministers of the right of Massachusetts, that they propos 'd to leave the question to be settled by Commissioners after the peace. When, therefore, it is urged on the part of Great Britain, that it is in- credible, that she should, after having rejected the proposal of making the River St. John, from its mouth to its source, the boundary between the two Powers, she should have yielded the upper basin of that river and the natural communication between Nova Scotia and Canada; that suggest! n, founded as it is only on presumed probabilities, which have been discussed in the preceding section, is further rebutted by the great weight which the claim of Massachusetts must necessarily have had in determining the final agreement. This seems to be placed beyond a loubt by the fact, that the final adjustment was precisely that which had been suggested in Mr. Mauduit's communication ; viz : the claim of Massachusetts to the narrow tract of land watered by the rivers which fall into the River St. Lawrence, wn abandoned ; and it was confirm- ed as far east as the River St. Croix, and from tho Sea Coast to the highlands which form the southern boundary of th" Province of Quebec. '^ri 76 Intentions of the Negotiators. The boundary, determined by the treaty of 1783, is in exact confor- mity with that claimed by Massachusetts under ita charter, modified by those acts of the British Government of the year 1763, which had es- tablished the limits of Nova Scotia and of the Province of Quebec. And this identity leads to the enquiry of the understanding, which pre- vailed, between the years 1763 and 1783, respecting the true meaning of the acts of the British Government, in reference to the Southern boun- dary of the Province of Quebec. The maps published since the treaty of 1783, may bear the marks of partiality, and have been modified in conformity with the pretensions of either party. No such bias could affect those that were published in Great Britain between the years 1763 and 1783. There was no motive that could influence Geographers to deviate from the true and obvious meaning of the acts of Great Britain which had established the Bounda- ries of her new and old Provinces. A solitary map, even though be- longing to that epoch, contradicted, perhaps, by others, would be no au- thority. But if all the maps published in England, during that period, and in which the Boundaries of the Province of Quebec, as established by the acts of Great Britain are delineated, do agree in that respect, it will prove that the meaning of the acts, in reference to that Boundary, was so clear and obvious that they were universally understood in the same manner. All the maps of that period, on which the southern Boundary of the Province of Quebec is laid down, and which, after a diligent search, both in England and America, have been obtained, accompany this state- ment. Some maps may have escaped notice ; but not a single one has been omitted that has come within the knowledge of the American Go. verament. The maps thus collected are the following, viz : No. 1. T. Kitchen's British Dominions in North America, &c. engra- ved for Dodsley's Annual Register of 1763. 2. T. Kitchen's British Dominions in North America, &c. engra- ved for Captain John Knox's History of the War in Ame- rica, and annexed to his Historical Journal of the Cam- paigns in North America, London. 1769. 3. British Empire in North America, &c. a)inexed to Wynn's His- tory of the British Empire, &c. London, 1770. 4. J. Palairefs North America, with Improvements, &c. by Dala- rochette, London, 1765. ti. J. Ridge's British Dominions in North America, &c. annexed to a complete History of the late war, &c. Dublin, 1766. 6. North and South America, bv the American Traveller, annexed to the '- American Traveller," &c. London, 1769. Former Boundaries; rt n engra- I's His- T)3la- inexed 1766. inexed •. 7. North America and West Indies, with the opposite Coasts, &c. London, 1776. — (Jeffery's Atlas.) 8. North America improved from D'Anville, with divisions by P. Bell, Engraved by R. W. SesV. — London, 1771. 9. P. Bell's British Dominions in North America, &c. 1772, an- nexed to "History of British Dominions in North Ame- rica," &c. in fourteen books. — London, 1773. 10. S. Dunn's British Empire in North America. — London, 1774.— (Jeffery's Atlas.) 11. D'Anville's North America, improved with English Sur- veys, &c. — London, 1775. — (Jeffery's Atlas.) 12. E. Bowen and J. Gibson's North America, &c. — London, 1775 — Two sheets, (Jeffery's Atlas.) Sayer and Bennett's Province of Quebec, &c. — London, 1776.— (Jeffery's Atlas.) Seat of War in the northern Colonies, &c. — London, 1776, annexed to the American Military Pocket Atlas. North America, &c. corrected from the materials of Gover- nor Pownall, M. P. — London, 1777.— (Jeffery's Atlas.) Continent of America, &c. corrected from the materials of Governor Pownall. — London, 1777. Faden's British Colonies in North America, 1777. North America from the latest discoveries, 1778 ; engraved 13 14. 15. 16. 17. 18. W. for "Carver's Travels."— London, 1778 and 1781. 47. T. Jeffrey's Nova Scotia, &c. — London, 1775. The identity of the Highlands which form the southern boundary of the Province of Quebec, with those which are claimed by the United States as their boundary, will appear evident on the first inspection of those maps. It strengthens the proofs, derived from them, that many dif- fer from each other in several irrelevant particulars, (f) The River Penobscot is laid down, in some, as the Western boun- dary of Nova Scotia ; in others, ./here the river called St. Croix is made the boundary, the name is given to different rivers, to those now known as the Magaguadavic, the Scoodic, and the Cobscook. The course of the line drawn from the source of the St. Croix to the High- lands, is not the same in all, being generally due north, but, in some, (/) Mosi of the differences are found in the western boundary of Nova Scotia and not in the southern boundary of the Province of dueboc. The reason is, that the proclamation of 1763 which prescribed this last boundary, had been published in a variety oT ways and was known to all ; whilst the Commissions of the Goverror of Nova Scotia, which regulated the western boundary of that Province, were not published and remained unknown. Some of the map makers favoured in that res- pect the British claim, and others that of Massachusetts. 7* w '4 I t I 78 IntentioM of the Negotiators, weit of north ; aud, in one instance, a crooked instead of a straight line. That line, in most of the maps, crosses no other waters but those of the River St. John, and its tributary streams!^ while, in others, it also crosses some upper branches of rivers that empty themselves into the Gulf of St. Lawrence. The boundary from that line eastward, in some of the maps, reaches the Bay des Chaleurs, by passing north of, and leaving on the right, the River Ristigouche : in others, it extends along the dividing ridge, to the source of that river, which is represented as a short stream, and then down the same to the Bay. But, in every instance, the course of the line from the source of the River St. Croix is northward ; in every instance, that line crosses the River St John and terminates at the Highlands in which the rivers that fall into the River St. Lawrence have their sources ; in every instance, the north-west angle of Nova Scotia is laid down on those Highlands, and where the north line terminates ; in every instance, the Highlands, from that point to the Connecticut River, divide the rivers that fall into the River St. Lawrence, from the tributary streams of the River St. John, and from the other rivers that fall into the Atlantic Ocean. This universal understanding is easily accounted for. The descrip- tion of the southern boundary of the Province of Quebec, in the Acts of the British Government, was in that respect, like that of the boun- dary of the United States by the treaty of 1783, expressed in terms ao clear as to admit of no doubt, and to be susceptible of but one construe tion. What eHect that universal understanding had on the framers of the treaty of 1783, will now be considered. Mitchell's map is acknowledged, by both parties, to have regulated the joint and official proceedings of the framers of the treaty of 17S3 : and the southern boundary of the Province of Quebec, designated for the first time by the Proclamation of 1763; was not, and could not be, laid down on that map, which was published in the year 1765. This acknowledgment is founded on the testimony of the American Negotiators, taken at the time when the question " what" was the true River St. Croix, had, by virtue of the treaty of 1794, been submitted to a Joint Commission. The deposition of John Adams states, that « Mitch, ell's map was the only map or plan which was used by the Commis- sioners at their public conferences, though other maps were occasionally consulted by the American Commissioners, at their lodgings." In a letter to Lieutenant Governor Cushing, of Massachusetts, of the 26th of October, 1784, when Mr. Adams's recollections on the subject were quite fresh, he writes : " We had before tis, through the whole nego- tiatiorij a variety of maps ,- but it was Mitchell's map, upon which was marked out the whole of the Boundary Lines of the United States ; Fojtner Boundaries. 79 I and the River St. Croix, which we fixed on, was upon that map the nearest river to St. John's ; so that, in all equity, good conscience, and honor, the river next to St. John's should be the boundary." (g-) One of the maps annexed to this statement, (No. 12,} that of Eman- uel Bowen, published in 1775, is specially quoted in the Report of the Committee of Congress of the ICth of August, 1782, and was therefore in possession of the American Government. The fact of other maps having been consulted by the American Min- isters, is sufficient proof of their knowledge of what was universally un- derstood by the Highlands prescribed as the southern boundary of the Province of Quebec. And it may be fairly inferred from the words, in the letter of Mr. Adams of October, 1784, "We had before us, through the whole negotiation, a variety of maps," &c. that those maps were be- fore the Joint Negotiators. Yet it may be insisted that it is not in proof that the British Commissioners werb acquainted with any other map than that of Mitchell. On the supposition that the British Government selected, for the pur- pose of treating with the American Commissioners respecting bounda- ries, men who bad never seen, and, on that occasion, did not examine any of the numerous maps of America published during the twenty next preceding years ; on the supposition that those Negotiators had no know* ledge of such familiar collections as Jeffrey's American Atlas, or the American Military Pocket Atlas ; on the supposition that having, almost throughout the treaty, adopted the boundaries designated, and even the phraseology used in the Proclamation of 1763, they neglected to consult any of the maps in which the boundaries were laid down in conformity with that Proclamation ; on the supposition that the same unaccountable carelessness existed in the British Cabinet, to whom the case is proved to have been specially referred more than once ; on these suppositions, but on these alone, may it be pretended that the British Negotiators were ignorant of the universal understanding respecting tho southern Boundary of the Province of Quebec, and unaware of its connection with the Boundary established by the treaty of 1783. Even on such supposition, it will hereafter be shown, that Mitchell's map is suineient to establish what Highlands were intended by the Proclamation of 1763, and by the treaty of 1783. The Provisional Articles of Peace between Great Britain and the (g) Though the remark may be superfluous, it may be obseryed that the fact of other maps having been consulted is mentioned by Mr. Adams for no particu- lar purpose, and only in order to state the whole truth. The River St. Croix was at that time, the only subject of contention, and Mitchell's map was, in that res- pect, decisive in favor of the pretension of the United States, whilst several of the subsequent maps favored, as to that point, the British claim. 80 Intentions of the JVegotiators. United States had been signed on the 30th November, 1782. The Boundaries then agreed on are, without any alteration, the same as those of the detinitive treaty concluded on the 3d day of September, 1783. During the interval that elapsed between the signing of the prelimina- ries and of the definitive treaty, four maps of the United States were published in London, one of which, at least, (Bew's,) appears to have been intended as illustrative of the Debates in Parliament on the sub- ject of ^e Boundaries, viz : No. 19. Sayer and Bennet's United States of America with the British possessions, &c. London, 9th February, 17S3. 20. Bew's North America, &c. (or Rebel Colonies, now Uni- ted States,) engraved for the Political Magazine. Lon- don, 9lh February, 1783. 21. J. Wallis' United States of America, &c. London, April, 1783. 22. J. Gary's United States of America, &c. London, July, 1783. These maps are an evidence of the contemporaneous understanding of the Boundaries of the United States, according to the preliminaries. In all of them those Boundaries are laid down as now claimed by the United States, and are the same with those delineated in the prece- ding maps, as the Boundaries of the Provinces of Quebec and Nova Scotia, {h) The only contradictory evidence adduced on the part of Great Britain, is intended to show, that the Province of Quebec had been understood, by some of its officers, subsequent to the Proclamation of 1763, to ex- tend beyond the basin of the River St. Lawrence. It consists, 1st, of a private sale and some leases, recorded at Quebec, of a tract of land called the Fief of Madawaska, situated on one of the upper branches of the River St. John, which had formerly been granted by the French Government of Canada ; 2dly, of a notice, respecting encroachments on the hunting grounds of the Indians on the River St. John. The Fief of Madawaska was granted in the year 1683 to a French subject, by the French Governor, and Intendant of New France and Acadia. The ancient date and French origin of the Grant are certain- ly irrelevant to any question at issue between Great Britain and the United States. Although the grant is made by the Governor of both Canada and Acadia, it is admitted, and is undoubtedly true, that the jurisdiction of the Governors of Canada, as such, extended over a con- (A) Seven other maps of the same character, published during the same and the en- suing year, afford additional proof of that understanding ; and evidence is not want- ingthat it continued to prevail in England for many subsequent years. Former Boundariet. 81 siderable portion, and since the Treaty of Utrecht, over the whole country watered by the River St. John. That the whole country wai a perpetual nuhject of litigation between France and England, is well known. Neither of the two Powers, in it» charters or grants of land, paid the slightest respect to the claims or rights of the other. Between Great Britain and the United States, and in reference to the colonial times, no other authority, as respects such charters or grants, can be appc^aled to, than the public documents which emanated from the British Government. Great Britain after the cession of Canada, had a perfect right to annex to any of her other colonies, any portion of the territory which had made part of that province, or had been possessed by France before the cession, and to restrain her new government of Quebec, within any limits she thonght proper to assign to it ; and this she actually did by the Proclamation of 1763. It is obvious, that the fact of a grant of land of Canadian origin be< ing found in any place, on the River St. John, does not prove that it ever lay, or does lie within the boundaries of the Province of Quebec, (now Lower Canada,) as prescribed by the Royal Proclamation of Oc- tober 7th, 1763. And no other evidence has been produced, of a date subsequent to that proclamation, in any way relating to that Fief, than the fact, that various deeds of sate and leases of the property were re- corded, either in what is called the Registers' office of Quebec, or in those of Public Notaries of the same City. Of the three deeds of sale, one is dated July, 1763, prior to the Royal Proclamation, and the two others, June and August, 1S02, suh^^quenl Ut the Treaty of 1783. Of the four leas' ■', one is dated in 178<" and the three others are the only acts produce! dated subsequeu to the proclamation of 1763 and previous the Treaty jo( 1 . ->3. That such obscure trans- actions could r>ve had any effect on the result of the negotiations for peace, or have even been known to the negiamtot;^, will hardly be as- serted. The recording of those instruments at Quebec only shows, if it shows any thing, that the lessees and grantees, all of them inhabitants of Canada, were not competent juciijes of what were the limits of the province. For the first deed, which was from the last French owner to General Murray, who was a competent jndgp. bears dr. •>, July, 1763, before the limits of the province had bceu prescribed by the British Government. But there was a KUlHcii^nt reason, why those sevi-ral instruments should have been thus '•oe :ded. Every one, whether lease or deed of sale, included not on; ;' ihe Fief of Madawaska, but also, other much more valuable lands, situated within the acknowledged boundaries of the British Province of Quebec. The original deed to General Murray includes, 1st. the fief of Mada- 'ii IMAGE EVALUATION TEST TARGET (MT-3) y^ 1.0 I.I 1.25 ■^ lii 1112.2 U 1.4 20 1.6 A" O '1 p> *^'C -^ a M ?jt^ >> ''•y Photographic Sciences Corporation #^ .v^-^ m \ \ 6^ 33 WEST MAIN STiTEET WEBSTER, N.Y. 14580 (716) 872-4503 k7^ w.f ^ A L<* J Zi 62 Intentions of the Negotiators. r/ i' waska containing three leagues in front, on each side of the river of the same name, by two leagues in depth, together with the adjacent Lake Temiscouata (extent of lake not declared;) 2ndly., the Scigneu- rie of the River Du Loup, (a tributary of the St. Lawrence,) contain- ing seven leagues and half, or thereabout, in front, on an average depth of more than two leagues. All the subsequent deeds of s'ile and leases, embrace both those fiefs ; and some of them include besides other large tracts of land, and even houses, all situate on the waters of the River St. Lawrence. It is further in proof, that the Seigneurie of Foucault, which was included in some of those deeds of sale or lease, was known to be situated in part east of the River Connecticut, south of the 45th parallel of north latitude, and therefore without the acknowledged boun- daries of the Province of Quebec. The only other alleged act of jurisdiction by the Government of Canada, over the contested territory, of a date prior to the Treaty of 1783, is a notice from the Secretaries' office, dated 19th January, 1765, and inserted in the Quebec Gazette. It declaies that the privilege pray- ed for by the St. John Indians, namely ; the renewal of the order for- bidding the inhabitants of Canada to hunt on their grounds, would be allowed and confirmed to them, unless just cause could be f^hown to the contrary. When the question was to quiet Indians in the vicinity of his Province, a British Governor might have been justified in not strictly attending to boundaries running across a country yet in their posses- sion. But, in this instance, the Governor of Quebec did not 'overstep the limits of his legitimate authorityr The order applied only to the tvhite inhabitants of Canada, residing within the acknowledged bounda- ries of his Piovince ; and he had a right to forbid their hunting on In. dian grounds, though situate beyond those boundaries. To argue from such an order, that the River St. John was within the limits of Canada, would be just as rational, as to insist that China is part of the dominions of Great Britain, because she did, during near two centuries, forbid her subjects generally to trade to that country. It may be further observed, that the protection of the Indians was one of the special objects of the Proclamation of 1763. Amongst other provisions to that efiect, it is « provided, that every person who may in- cline to trade with the said Indians, do take out a license for carrying on such trade, from the Governor or Commander in Chief of any of our colonies respectively, tehere atich person shall reside." Whence it clear- ly appears that the powers given to the Governors, in relation to Indian affairs, were to be exercised, with respect to white inhabitants, in reier- ence to their place of residence, and not to that of the Indians. Topographical Knoidedgi e» In. one tther in- king our ear- lian Iter- §7. Topographical knowledge of the Negotiators. It has been repeatedly asserted, in the British . latements, that the im- perfect knowledge of the topography of the country r^^ndered it impossi- ble for the Negotiators of the treaty of 1783, to describe the boundary line with precision ; whence is inferred the necessity of recurring to their presumed intentions. It is affirmed in those statements, that " the very imperfect topograph!- cat knowledge then had of the interior of the country, which was in fact but one general wilderness, rendered it absolutely impossible for the framers of the treaty of 17Sb, to effect their declared intention of laying down the several points and lines of Boundary with such a degree of accuracy, as to preclude, altogether, doubts on particular parts of it. Ac- cordingly the very terras of the treaty, in reference to the point in ques- tion, manifest the uncertainty of the Negotiators ; and they appear to have lef\ to others the task of finding that point, guided by their descrip- tion of it, rather than to have positively fixed it themselves." Again, "how extremely difficult, or rather how utterly impracticable it must have been for the Negotiators of 1783, to describe the boundary throughout its whole extent in such terms as to leave no room for hesi- tation or dispute in fixing its actual delimitation.*' There is no doiibt, that the Negotiators wanted the topographical knowledge necessary to define some other portions of the boundary. It is well known that such was the case, with respect to that portion which is defined in the treaty, as extending from the most north-western point of the Lake of the Woods, on a due west course to the River Mississippi. It was afterwards ascertained, that such line would pass north of Uie most northern sources of that river, and that the boundary was defined in such terms, as rendered it impossible to execute the treaty according to its tenor. It became therefore necessary to provide by a new nego- tiation for an amicable settlement of the question. No such difficulty occurs in the case of the north-eastern boundary, which is alone under consideration. In another part of the British statement, and in reference to the north- eastern boundary itself, the following passage occurs, vis : " It may surely be assumed that the Negotiators meant to define the Boundary in a spirit accordant with the just and liberal views declared in the pream- ble of the treaty. If it had been possible to describe the whole bounda- ry line with minute exactness, their desire to prevent future disputes would doubtless have led them to do so. But they evidently did not m ' -1 I ' I 84 Intentions of the Parties. mv' |i':- mif' V)[ possess the topographical details neceasary for such extreme precision. The Boundary was, therefore, of necessity, to be defined in general terms." It becomes therefore highly important to demonstrate, as it may be done conclusively, that thUcable :laimed DXtend- , as be« y them- the At- Dtended and any hich, on rom any ivided or ath-west- lUing in- nn, it ne- river as that, if o the At- id boun- ngle and d, that if > the At- rth-west ers, in a that rea. my other s of the Irs of the y, which Imost su- lUced on [iguity of from the " What reasons may have prevailed with the negotiators, on the sup- position that they intended to designate highlands to the nouth of the St. John, as those which the due north line was to meet, not to declare that specific intention by an additional clause of the treaty, can now be only matter of conjecture. But strong probabilities are not wanting to aid the discovery of the truth even in this particular also." " In. the first place, by retaining in the clause respecting rivers and highlands the term ' Atlantic Ocean,' in connection with the limited sense unequivocally attached to it in another part of the same Article, the British Plenipotentiary might have reasonably hoped to preclude any future disagreement on the subject. In the second place, the insertion of a definition of a north-west angle of Nova Scotia, calculated to ob- viate any embarrassment which might spring out of the use of that term, as a known and settled point of departure with reference to the Colonial Boundaries, may also have contributed to satisfy him as to the efficacy of the wording, as it now stands in the Treaty." " It may surely be assumed that the negotiators meant to define the boundary in a spirit accordant with the just and liberal views declared in the preamble of the treaty. If it had been possible to describe the whole Boandory Line with minute exactness, their desire to prevent fu- ture disputes, would doubtless have led them to do so. But they evi- dently did not possess the topographical details necessary for such ex- treme precision. The boundary was, therefore, of ne^'^essity, to be de. fined in general terms." " A glance on Mitchell's Map was sufficient to show them, that a due north line could not be drawn from the source of the St. Croix to the supposed latitude of the head waters of the Atlantic rivers, flowing westward of that river, without a probability of its striking some of the smaller and very inconsiderable lakes or water courses falling into the St. John. To have changed the grand features of their agreement, on account of this petty consideration, would have been unwise ; and, at the same time, there was an obvious and disproportionate inconveni- ence in guarding, in express terms, against a mere contingency of no practical importance." " Again, they must have known that a considerable part of the boun- dary line would be traced along the highlands situated nearest to the head waters of the Connecticut, and immediately dividing the Kennebec from the Chandiere. ^11 parties agree that the words of the treaty apply without shadow or possibility of doubt, to that portion at least of the highland boundary. The highlands, which were kno^on to range along the sources of the more eastern Atlantic rivers, were believed to be a continuation of the others." "In order to frame a definition more nicely and literally adapted to 02 IntttUions of the Parties. r^ „ '11 .w 'II.. f !' f 'i i »!i! 'i m f iii the varying circumstancea of the line as thus prolonged, it would have been necessary to obtain an exact knowledge of that part of it where the change of circumstances was to operate ; and this degree of precision, as already observed, was necessarily unattainable from the moment that the source of ixe St. John had ceased to be in view as the proposed north-west angle of Nova Scotia. The due north line was intended to strike highlands to the south of the River St. John. At the point of intersection, the boundary was to be carried west in such manner as to place all the rivers flowing on that side of the St. Croix, and conse- quently Atlantic rivors, within the territory of the United States. To- wards the other extremity, there was that large portion of the Highland Line, respecting which both parties are agreed. Upon these data, it is by no means extraordinary that the negotiators should have fallen into the error (for such the pending difference authorizes us to call it) of sup- posing that they had sufnciently provided, by the present wording of the treaty, for the due direction of that part of the line which was intended to unite the point of departure on the north line, with the north.western- most head of Connecticut River, by joining on to that other part of the same line which immediately separates the sources of the Kennebec from those of the Cbandiere." « These probabilities, which are not put forward as known undoubted truths, being nevertheless, such evidences as the nature of the case ad- mits, must have their weight in removing the objection to which they immediately relate, and must contribute, in that respect, to confirm and fully establish the position previously maintained on such just grounds, and by so many cogent and convincing reasons ; namely, that the High- lands of the Treaty were meant to be fixed to the South of the St. John." What were those other just grounds and cogent reasons has already been stated. It is not necessary to advert to the mode of reasoning by which, from the assumption, that the due north Line was intended to strike Highlands to the south of the River St. John, the same conclusion is deduced ; nor to the repeated suggestion, that a continuation of High- lands dividing the rivers contemplated by the Treaty, which continua- tion does not divide those rivers, is to be taken as part of the chain of Highlands which actually divides those rivers. But the reasons assign- ed, why the Negotiators did not declare the specific intention ascribed to them by Great Britain, by an additional clause of the Treaty, or by an alteration of its terms are : first, that the term Atlantic Ocean, retained in the clause respecting Rivers and Highlands, in connection with the limited sense unequivocally attached to it in another part of the same Article, might have reasonably been deemed sufficient to preclude any future disagreement on the subject ; secondly, the insertion of a defini- Topographical Knoickdge. 98 itinua- iOf 3sign- kribed by an Itained lith the same |e any lefini- tion of the north-west angie of Nova Scotia; thirdly, the want of cuffi. cittot topographical kaowledge. The laat supposition has now been put at rest ; and it has been de« monstrated, that the definition of the noith-wedt angle of Nova Scotia in the Treaty proves the reverse of the position assumed on the part of Great Britain. In order to explain, why the Negotiators, on the suppo- sition that they intended to designate Highlands to the south of the St. John, did not8peci ions, by equence upon it. doubtful m. As equally } at the ains on British Iblishing U Great [cations. Ites can- But, if Ito ask, ^g w ith the other party ; and that both should be under the obligation of laying before him all the instructions given by each to the negotiators of the Treaty, as well as the correspondence which took place between each Government and its plenipotentaries. From the relative distances and the frequency of communications, the coriespondence between the British Government and its Ministers at Paris, must have been much more full and better calculated to show the intentions of the parties, than can be deduced from the few letters, which exist and have been publish- ed from the American Miuisters to their Government. By the Convention of 1627, the contracting parties were bound to give copies only uf acts of a public nature ; and this was construed so strictly, that the British Government declined to give copies of the opinion given in 1731, by the Officers of the Crown, concerning the charter of Massachusetts and of the order in Council relative thereto mentioned in the letter of the Board of Trade to Governor Bernard, {k) There is one point on which the negotiators may have been led into error by Mitchell's map. The due north line drawn upon it does not intersect any of the tributary streams of the Ristigouche. It may be said that if it had been anticipated, that some of those streams would be intersected by the north line, tlieframers of the Treaty would have desig- nated the highlands, which the due north line was to meet as dividing the waters of the River and Gulf of St. Lawrence from those of the At- lantic Rivers. This is not iir.probable, as the boundary would have been more natural. But this is mere conjecture ; and, whatever may have been the intentions of the negotiator?, the distinction between the River and the Gulf is so clearly designated by nature and by official acts, that the terms of the Treaty do not seem to allow that construction. Should it be thought otherwise, the territory which embraces the head waters of the Ristigouche is in itself of little value, would facilitate the communi- cation between New Brunswick and Canada, and might be yielded by the United States without a dereliction of principle. (1) (k) An autbeniic copy of the opinion of the Law Oncers of the Crown was found in the Archives of Massachusetts, but the order in council was not obtained. {I) It may be observed that the River St. Lawrence is itself, in fact, an Atlantic River, and has been considered as such by all geographers (Multe Brun, Bouchette, &c.) The signification of the term Atlantic Ocean is restrained in the clause which refers to the divicsion of rivers as well, but not in the same manner, as in the clause to which the Agents of the British Government have appealed. In tlie first clause, the Highlands must divide the rivers that empty themselves into the River St. Law- rence from all the other Atlantic Rivers. In the oilier clause, Bay of Fundy is dis- tinguished from the main Ocean, or from the whole Atlantic Ocean, the Bay of Fun- dy only excepted. ilill 86 Recapitulation. P § 8. Recapitulation. The summit of the north-east angle of the United States and that of the north-west angle of Nova Scotia are identic ; and the summit of the said north-west angle is, by the express terms of the treaty, actually placed on Highlands which divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean. For the vord said^ which refers to the " Highlands '' that form the said north-west angle, identifies them with the Highlands which form the boundary and divide the rivers as aforesaid : and, moreover, the eastern boundary, which terminates at thu summit of the said north-west angle, is described, in a subsequent clause, as a line to be drawn froin the source of the River St. Croix, directly north to the afortsaid Highlands which divide the rivers as aforesaid. The boundary between the two powers is described in the treaty, as being from the summit of the said north-west angle of Nova Scotia, along the Highlands which divide the rivers as above described, to the north-westernmost source of Connecticut River. No words in the lan- guage could have been selected more appropriate and precise thanyront, along and to, in order to describe a boundary intended to be from its beginning to its termination, without any chasm or interruption, along Highlands actually dividing the rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean. And the deliberate attention, bestowed on that subject by the Negotiators, is demonstrated by the care they took in correcting an error which left a chasm, between the 45th degree of latitude and the source of the Con- necticut, in the description of the southern boundary of the Province of Quebec, or Canada, as designated ia the previous acts of the British Government, viz : the Royal Proclamation of 1763, and the Quebec Act of 1774. It is asserted, on the part of Great Britain, that the north.west angle of Nova Scotia is to be found, at a point on the said due north line, near Mars Hill, about forty miles north from the source of the St. Croix, or, according to Messrs. Featherstonhaugh and Mudge, at a point about twelve miles further north, near and south of Restock River : neither of which points is on Highlands dividing the waters of the St. Lawrence from those of Atlantic rivers, or nearer such Highlands than from ninety to one hundred miles ; and both of which divide only tributary streams of one and the same river, viz : the River St. John ; which river does not fall into the River St. Lawrence, nor, according to the construction put on the treaty, on the part of Great Britain, into the Atlantic Ocean. Recapitulation. 97 bat of of the placed 9 into 3cean. [le eaid riti the eastern t angle, orti the ghlands eaty, as I Scotia, I, to the the Ian. an/rom, from its in, along into the in. And [iatora, is ;h lea a [he Con- tvince of British Quebec jBBt angle line, near Jjroix, or, Int about leither of Lawrence ninety streams Iver does Istruction i Ocean. It is, in like manner, asserted, that the boundary between the two Powers, from either of those two points to a Highland which divides the sources of the Penobscot from those of the River Chandiere, a tributary stream of the St. Lawrence and about one hundred and twenty miles distant, extends along Highlands which do not divide any rivers empty- ing into the St. Lawrence from any rivers whatever, but which divide and can divide na other rivers whatever, than tributary streams of the said River St. John from tributary streams of the same river and of the Penobscot. Both assertions are not an interpretation, hut a direct and obvious violation of the express terms of the treaty. The attempt to obviate this, by calliug the Highlands claimed on the part of Great Britain, a contin- uation of, or, connexion tvitk the Highlands, one hundred and twenty miles distant, acknowledged by both parties to be the Highlands con- templated by the treaty, is tantamount to an interpolation in the treaty of one of those expressions. The term, " Highlands which divide, &c.," applied to a boundary between the dominions of two Powers, implies that the territories thus to be divided are contiguous. " The verb, {a divide^ requires the conti* guity of the objects to be divided." A boundary, one hundred miles distant from the waters of the St. Lawrence, does not divide those waters from any other rivers whatever. The Highlands claimed as a boundary, on the part of Great Britain, do divide the waters of the Penobscot from those of the St. John's, and not from those of the St. J^awrence. The whole upper basin of the St. John's intervenes between the Highlands claimed on the part of Great Britain and the sources of the St. Lawrence. This fact was perfectly well known to the Negotiators of the treaty, as appears by Mitchell's Map, acknowledged to have been that which gov- erned their joint and official proceedings. IV say, therefore, that the north-west angle of Nova Scotia and the boundary, claimed on the part of Great Britain, were those which they intended to designate, is to suppose, that they knowingly and deliberately did define that angle and that boundary, by designations known to them not to apply to the angle and boundary which they intended to define. It has been demonstrated that the framers of the treaty were possessed of all the information necessary to enable them to define with precision the position of any north-west angle of Nova Scotia and of any boundary between the two Powers which they might have intended to establish ; and also that, had they intended to adopt those claimed on the part of Great Britain, this, with the data in their possession, might have been effected in express terms, without the slightest difHculty. All the preceding observations apply with equal force to any other point and to any other line whatever, which might be claimed, on the part 9 98 Recapitulation. of Great Britain, as the north-west angle of Nova Scotia and the boon- dary between the two powers, other than the angle and the boundary claimed by the United States. No point on the due north line, other than that thus claimed, or that which divides the waters of the St. John's from those of the Ristigouche, divides any rivers from each other, but tributary streams of one and the same river, either the St. John's, or the Ristigouche. And no point whatever on that due north line, other than that claimed by the United States as the north-west angle of Nova Scotia, divides the waters of the St. Lawrence from any other rivers whatever. • No boundary line, drawn from any point whatever on the due north line to the source of the River Chandiere, other than the line claimed by the United States as their boundary, can, through that whole distance ; either divide the waters of the St. Lawrence from any other rivers what- ever ; or, if beginning at a point on the due north line south of the St. John's, divide any other rivers from each other than tributary streams of the St. John's from those of the Penobscot ; and, if beginning at a point north of the St. John's, such boundary line cannot divide any rivers whatever from each other, and will only intersect various branch- es of the St. John's. To assert, therefore, that the negotiators of the treaty intended to de- signate, as north-west angle of Nova Scotia and boundary between the two Powers, any other point or line whatever other than those claimed as such by the United States, is to assert, that those negotiators did knowingly and deliberately define that angle and boundary in terms known tp them not to apply to the angle and boundary which they in- tended to define; that they did deliberately prescribe an angle and boun- dary which they knew to be physically impossible ; that they did deli- berately agree to a treaty of boundaries which they knew could not be executed. There are, on the due north line drawn from the source of the St.Croix and protracted to the River St. Lawrence, but two points which divide tributary streams of rivers falling into different estuaries, viz : that which divides the waters of the St. John's from those of the Ristigouche which falls into the Bay des Chaleurs ; and that which divides the wa- ters of the Ristigouche from those of the River St. Lawrence. As Cape Rosiers is acknowledged to form the southern extremity of the mouth of that river, and Bay des Chaleurs lies south of that Cape, that Bay is an inlet of the Gulf, and not of the River St. Lawrence. That point on the due north line, which divides the waters of the River St. Lawrence from the Ristigouche, is therefore, the place prescribed by the treaty to be the north-west angle of Nov^ Scotia, provided the Gulf of St. Lawrence is shown to be embraced by the term " Atlantic Ocean," Recapitulation. 99 boon- mdary , other John's ler, but n's, or e, other r Nova rivers e north med by stance ; rs what- the St. earns of ng at a ide any branch- ;d to de- jveen the claimed tors did n terms they in- id boun- Idid deli- Id not be Ist.Croix [h divide liz : that tigouche the wa- Ice. As ly of the ape, that That liver St. [d by the Gulf of lOcean," as used in that clause of the treaty which relates to the rivers which are to be divided. The boundary claimed by the United States, from that angle to the highland acknowledged by both parties, which divides the sources of the Penobscot from tuose of the Chandiere, divides through the whole ex- tent, without chasm or interruption, the tributary streams of the River 'St. Lawrence from those of the Rivers Ristigouche and St. John. It is, in position, in perfect accordance with the terms of the treaty, unless it can be shown that, in the clause last above mentioned, the term "At- lantic Ocean " does not embrace the Gulf of St. Lawrence and the Bay of Fundy, into which those rivers respectively empty themselves. And if those rivers are not, in that clause, considered as Atlantic rivers, no other boundary can be found, which in position will accord with the terms of the treaty. It is contended, on the part of Great Britain, that the boundary thus claimed by the United States, wants the mountainous character, and the visible elevation which she ascribes to the term " highlands." The fact has not been ascertained, and, for the present, will be admitted. But it is altogether denied that the term << highlands which divide rivers" implies such character. The word « highlands " is in itself vague and indefinite, and always relative. For that reason, it was an appropriate expression, for the pur- pose of designating, without reference to positive elevation, the ground which divides rivers, since that ground is always higher^than the rivers which flow from it in different directions. But, used alone, it would have been altogether indeterminate and unfitted for the designation of a boundary. It is the property of dividing certain specified rivers, it is that inseparable adjunct which defines the term as used in the treaty and denotes with precision the intended boundary. Two contradictory conditions are inadmissible in a definition. That of dividing rivers was expressed in so many words, and is therefore in- dispensable. The contemplated highlands must necessarily by the ex- press terms of the treaty divide certain rivers. No other condition can be imposed on the highlands, no implied meaning can be ascribed to that word, which might be contradictory of the first clear and express condition. Nothing was known but the general course of the rivers, and it was only by referring to those rivers, that the negotiators could and did describe the boundary. The nature of the ground which divided the rivers was unknown to them, and it was not explored till the year 1818, and then only partially by the surveyors appointed under the Ghent Commission. And since the negotiators could not divine, whether it would be found mountainous, and with visible elevations, or not, the supposition that the term " Highlands " implies that condition is inad* 100 Recapittdation. !/■» inissible, sine* that second condition, might prove contradictory of the first. But it has, besides, been conclusively demonstrated ; that the high- lands acknowledged by both paties, the Highlands claimed by Great Britain, and the Highlands claimed by the United States were all desig- nated by Pownall and others, by the name of " Height of Land," which lastterm is therefore synonymous with that of ''dividing Highlands." And multiplied instances have been given, that the term " Height of Land" is universally, and that of Highlands occasionally, given without refe- rence to mountainous character or visible elevation, to the ground which divides rivers, and in which those rivers have actually their sources. It has been asserted in the British Statement that, according to geo- graphical practice, the Bay of Fund; is not comprehended in the Atlan- tic Ocean. And, from the fact, that in one clause of the Treaty which does not relate to the division of rivers, the signification of the term At- lantic Ocean, on account of its being there contradistinguished from the Bay of Fundy, is limited so as to exclude that Bay ; it is inferred that it rnuat be limited in the same manner in another clause where that term is used in reference to the division of rivers. It has been proved by a variety of instances, that, according to geo- graphical practice and general usage, the term Atlantic Ocean embraces its bays and inlets ; and that, more particularly in reference to that part of the said Ocean adjacent to the American shores, it embraces both the Bay of Fundy and the Gulf of St. Lawrence. It has been shown that, in the Proclamation of 1763, reveral rivers are described as falling into the Atlantic Ocean which have their mouths in the Bay of Chesapeake or in Albermarle Sound. And it has also been shown that, of all the rivers west of the St. Croix intended by the treaty to be divided, there is not one which does not fall into some bay known by a distinct name ; and particularly, that the Connecticut falls into Long Island Sound, which is an inlet of the Ocean more close and of a more distinct cha- racter than the Bay of Fundy. It is contrary to all the rules of language, to suppose that a word or expression which is susceptible of more than one meaning, or the mean- ing of which may in two different sentences of the same instrument be limited in two different manners, by the different expressions united with it, must in both sentences have the same meaning. In one Jause of the treaty, the Atlantic Ocean is contradistinguished from the Bay of Fundy, and excludes that bay alone. In the other clause which relates only to the division of rivers, those which fall into the Atlantic Ocean are contradistinguished only from those that empty then selves into the River St. Lawrence, so as to exclude only the last mentioned rivers from Recapitulation. 101 ' of the te high- r Great 1 desig- •' which ." And ■ Land" )nt refe- id which rces. to geo- ,e Atian* ty which term At- from the rred that that term [ to geo- embraces that part I both the own that, ling into lesapeake >f all the there is t name; Sound, net cha- . word or le rocan- nnent be ited with clause of Bay of ;h relates ic Ocean into the ers from those embraced under the general designation of rivers falling into the Atlantic Ocean. The only semblance of probability in favour of the erroneous infer- ence, in the British Statement, would be found in the supposition, that there was no reason for designating *' e place in which the St. Croix had its mouth ; whence it might perhaps, though not very logically, be inferred, that the designation was intended to restrain in the other clause, the ordinary signification of the term Atlantic Ocean, in a dif- ferent manner from that in which the term is limited in that other clause itself. But it has been shown, that the designation of the Bay Fundy, as the particular inlet of the Atlantic Ocean, in which the River St. Croix had its mouth, might have been naturally borrowed from that adopted in all the previous public British Acts ht'ving reference to that River. And it has been demonstrated, that there was a cogent reason for making that designation in the treaty, in order to guard against any pretension, on the part of Great Britain, to claim the Penobscot or any other river west of the Bay of Fundy, as the River St. Croix contemplated by the treaty. It has further been demoi|istrated, that the soi'thern boundary of the Province of Quebec, as established by the Proclamation of 1763 and by the Quebec Act, is identic with that portion of the boundary of the United States which divides rivers. The only difference consists, in the substitution in the treaty, of the words Atlantic Ocean, instead of the word Sea used in the proclamation. Those words in relation to America are synonymous, since no other portion of the Sea washes the American shore but the Atlantic Ocean. And it has been shown that they were used as such in several instances, and even in another part of the proclamation itself. The reference in the treaty to the north- west angle of Nova Scotia puts that identity beyond a doubt. The de- scription of that angle was foreign to the purposes of the treaty, which had for its sole object to determine the boundaries of the United States, and not the boundary between Nova Scotia and Canada, which forms one of the sides of the north-west angle of Nova Scotia. The description there- fore of that angle could only be in reference to an angle previously pre. scribed by the public acts of Great Britain ; and it was thus prescribed by the Proclamation of 1763 and the Commissions of the Governors of Nova Scotia subsequent to that date. That the southern boundary of Canada, as established by the procla. mation of 1763 was at the time and till after 1783, universally meant and understood to be the same with the boundary now claimed by the United States, is undeniable and has been fully established by the coin- cidence in that respect of all the maps published iu England between the years 1763 and 17S3. The irrelevancy of the fact, that some leases 9* : ?• III 102 Recapitulation. , 1 of the fief of Madawaska which lies on the river of that name have been recorded at Quebec, and of an order forbidding Canadians to hunt on the Indian grounds of the St. John, for the purpose of proving a different understanding on the part of the Canadian Authorities, has been shown. It has been urged, that it was impossible that Great Britain, after har-r ing rejected the proposal of making the St. John the boundary, should have agreed to that now claimed by the United States, thereby yielding a larger territory than had been asked by America and the communication between Nova Scotia and Quebec. This inference, which cannot in any case be urged against the express terms of the treaty, has also been refuted by the following facts and arguments. The respective extent of the territories has been calculated on the part of Great Britain, by the map A, agreed to by both parties in 1827, and derived from surveys made thirty years after the date of the treaty. Calculated by Mitchell's map, the territory which would have fallen within thb United States had the River St. John been made the boundary, must have been supposed greater than that contained within the boundary now claimed by them. In point of value that of the territory between the St. Croix and the St. John was, on account of its proximity to the Sea Coast as well as of its soil, without comparison, far greater than that of the country situated north of the River St. John and west of the due north lint. The southern boundary of Canada, adopted by the treaty, was estab- lished in 1763, when the object was to include the French settlements within the basin of the River St. Lawrence ; and when it was a matter of indifference to Great Britain, whether the communication between Quebec and Nova Scotia was through Massachusetts, then one of her Colonies. It hbs been shown that the claim of Massachusetts under ner charter, though questioned by Great Britain, must have had a considerable influ« ence on the deliberations of the negotiators, since the relinquishment by his Britannic Majesty of the territories of the respective colonies makes part of the first article of the treaty by which he recognises their inde* pendence. Above all, it is in proof, that the British Negotiator, in the provision- al articles of 1782, ratified verbatim by the definitive Treaty of 1783, did yield the pretensions of Great Britain towards the east, t^e north and the west, on the express condition, that the secret article, not till lately ever published, should be added ; which, on the contingency of Great Britain retaining Florida, yielded to her and took from the United States twenty millions of acres ; a territory three times as large as that which is now contested, and far more valuable as to soil, climate, and situation. RecapUulation. 103 has Finally : it is couclusirely demonstrated by Mitchell's map and by the coincidence, in that respect, of all the maps published in England between the years 1755 and 1783, that the negotiators had all the topo- graphical knowledge necessary to enable them to define with precision any boundary which they intended to establish. The undeniable truth of that fact may be verified at once by comparing Mitchell's Map with Map A, with the terms of the treaty, and withtb? boundaries respectively claimed by the two Powers. It is impossible to assign any satisfactory reason, why, with that know- ledge, the negotiators, if they intended to designate the boundary claim- ed on the part of Great Britain, did describe it in such terms as those of the treaty. It is preposterous to suppose that^ with that knowledge, they should have believed, that the retention of the term Atlantic Ocean did express that presumed intention. And no terms could have been adopt- ed more clear, precise, and appropriate than those of the treaty, for the purpose of describing the boundary claimed by the United States. I charter, tie influ« lishment makes lir inde- I Dvision- \{ 1783, }rth and [11 lately If Great Id States It which Ituation. t : APPENDIX :ie said, J of the reaty of western which is ix to the ;ourse of ween the , bounda- ated and mission- ' Peace, had re- , as de- nt alter- vince of certainly he River ly with )oundary [)mmissa- [le limits the ne- in order Uder the lem plated by the treaty ; and, after the Scoodiac had been decided to be the river, which Was its true source ; the source generally, without designating which, being the expression used in the treaty. And three points were contended for ; first, the source of its western branch which was the most western point that could be selected ; secondly, the spot where the same branch issues from the lowest of the lakes now called Scoodiao Lakes, which was the most eastern point ; thirdly, the source of the northern branch or Cheputnatecook, which lies east of the source of the western branch, but west of the outlet of the lakes. The British agent strongly contended for the first or most western point; and his arguments have just now been quoted. It was afterwards ascertained, that the Commissioners intended to declare as the true source of the Scoodiac, the outlet of the lakes, which is still further east than the source of the Cheputnatecook, but the American Agent proposed, in order to secure a small tract of valuable land between the two branches, to agree that the last mentioned source should be fixed as the true source of the river. As, for the reasons al- ready alleged, the British Agent preferred at all events the most western point that could be obtained, he acquiesced in this proposal, provided it should be approved by Sir Robert Liston, then his Britannic Majesty's Minister to the United States. And this eminent person agreed to it for the very same reason. In his letter of 23d October, 1798, to the Agent, he says : <' It appears to me evident that the adoption uf the River Cheputnate- cook, as a part of the boundary between His Majesty's American do- minions and those of the United States, in preference to a line drawn from the easternmost point of the Schoodiac Lakes, would be attended with considerable advantage. It would give an addition of territory to the Province of New Brunswick, together with a greater extent of navi- gation on the St. John's River," &c. Had it not been understood that the due north line must necessarily have crossed the River St. John, the whole of that River, and of itii navigation, would have belonged to Great Britain, whatever was the point from which that north line should be drawn. It was only with the understanding that that lino must, at all events, cross that river, that the extent of navigation secured to New Brunswick could be greater or less, as the north line crossed the river more or less westerly. Mr. Liston, therefore, construing the treaty as every other person did at the time, knew that the highlands, designated by that instrument, must be north of the River St. John's and that the north line, in order to meet them, must cross that river. In the course of the proceedings before the commission of 1798, the agent on the part of the United States stated, that the commissioners, '■1 f Mi ■ f ,.i.- ISO Subsequent to 1783. Ri t h*!' who concluded the provisional treaty of pence in 1782, marked the di* viding line between the two nations upon Mitchell's Map ; and he pro- duced a map of Mitchell, as the identical copy which the commissioners had before them at Paris, which had been found deposited in the office of fiecretury of State for the United States, and had the eastern bounda- ry of the United States traced on it with a pen or pencil. In his letter of 25th October, 1784, Mr. Adams states that it was Mitchell's Map upon which was marked out the whole of the boundary lines of the United States. It does not appear that the identity of the map was ques- tioned when thus brought before the commission. The same map was still in the office of the Secretary of State, as late as the year 1828; and the boundary lines traced upon it, first with a pencil and afterwards with a pen, were those claimed by the United States. But as it had not been certified by the commissioners to be the identic map used in the course of the Negotiations, it was not laid before the King of the Netherlands on the part of the United States, as evidence of their claim. Several years subsequent to the proceedings of the commission of 1798, Mr. Sullivan was requested by the Department of State to commu- nicate his ideas on the yet unsettled question of the islands in the Bay of Fassamaquoddy, and to explain the difficulty which he had suggested respecting the Highlands contemplated by the treaty. His answer of 20th May, 1802, on the last subject was as follows, viz : (6) " By the treaty of peace it is provided that the boundaries shall be, " from the north-west 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 Rivejr St. Lawrence from those which fall into the Atlantic Ocean, to the north-westernmost head of Connecticut River." " 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 he supposed to be the Highlands ; but where that line will come to thf north-west angle of Nova Scotia, and find its termination, is not eaty to discover." " The boundary between Nova Scotia and Canada, was described by the King's Proclamation 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 desig- nated as a boundary. I have seen one of them, who agrees with the ac* (6) See " Confidential Documents laid before the Senate of the United States, forming the tenth volume of State papers published by Thomas B. Wait, Boston, 1819." This work has not been alluded to in the British Statements. Opiniona Entertained, 121 le pro- lioners B office lounda- i> letter '8 Map of the IS quet- lap was 28 ; and rds with not been Ft course herlands ssion of commu> the Bay luggested nswer of shall be, which is Croix to Ivers that 1 fall into nnecticut the line River St. to be the angle of cribed by that used to settle ids desig- ith the ac« ited States, lit, Boston, count I have had from the natives, and others, that there are no moun- tains or hif^hlaniU on the southerly side of tho St. Lawrence and north- eastward of the River Chandiere. That from the mouth of the St. Law- rence to that river there is a vast extent of high flat country, thousands of feot above the level of the sea, in perpendicular height, being a mo* raas of millions of acres, from whence issue numerous streams and riv- ers, 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 St. Lawrence, and some to the Atlantic Sea." " Should this description be founded in fact, nothing can be efTectire- ly done, as to a Canada line, without a commission to ascertain and settle the place of the north-west angle of Nova Scotia, wherever they may be agreed to be. If there is no mountain, or national 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 the one to the other may bo taken : and the ascertaining the degree of lati- tude, 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 crmvn the heights between the United States and Lower Canada, it ought lo have been noticed, that though those swamps are vastly extensive, yet in the ac- clivity from the Atlantic to their highest elevation, as well as in their declivity to the St. Lawrence, great tracts of valuable country are Inter- spersed." In the instructions given by the department of state, (Mr. Madison) to Mr. King the Minister of the United States at London, concerning the division of the islands in the Bay of Passamaquoddy, and the north- eastern and the north-western boundaries of the United States, dated June 8th, 1802, the following paragraph relates to the subject in ques- tion, (c) "In pursuance of the next object, viz: the establishment of boun. daries between the United States and New Brunswick on one side, and of Canada on another, it will be proper to provide for the immediate extension of the Hue which is to run from the source of the St. C'roix, and which is represented as necessary to guard against interfering or encroaching grants under American and British authorities. As the (c) Confidential documents as above. 11 1 J 1« 122 Subsequent to 1783. r iiV-,. ^J| course of this line is to be due north, and is to proceed from a point fixed by a survey already made, the runuinp if it will be sufBciently provided for by an appointment of a commis. ..ner by each of the two governments, and an appointn.ont by the two commissioners of a sur- veyor. In fixing the point at which the line is to terminate, and which is referred to as the north-west angle of Nova Scotia, the difficultv^ arises from a reference of the treaty of 17S3, <• to the highlands," which it is now found have no dehnite existence. To cure this difficulty, no better expedient occur.t than to provide for the appointment of a third commissioner, as in Article Y. of the Treaty of 1794, and to authorize the three to determine on a point mo' . proper to be substituted for the description in Article II. of the Treaty of 17S3, having due regard to the general idea that the line ought to te% minate on the elecated ground dividing the rivers falling into the Atlantic from those emptying them- ■elves into the St. Lawrenr^ The commissioners may also be autho. rized to substitute ftr the description of ''..e boundary between the point so fixed and the north-westernmost head of Connecticut River, namely^ a line drawn << along the said highlands," such a reference to interme- diate sources of rivers or other ascertained, or ascertainable points to be connected by straight lines, as will admit of easy aud accurate execuilon hereafler, and as wiil best comport with the apparent intention of the Treaty of 1783." It appears by Mr. Sullivan's Letter, that he had no doubt that the due north line must cross the St. John far south of the highlands contem- plated by the treaty. He thought that the ground, in which the rivers originated, flowing in opposite courses to the St. Lawrence, and to the Atlantic, was a morass of millions of acres, a vast extent of high flat country thousands of feet above the level of the sea, through which he apprehended some difficulties in tracing the boundary. No such diffi- culty occurs, but his principal er:or consisted in confounding th^ term «'i.5ghlands," the technical meaning of which hais been fully explained, with " chain of mountains." Mr. Madison, whilst he repents after Mr. Sullivan, that the highlands have no definite existence, by which he means that the higlilands are not mountains, saw ve";; clearly, that the due north line ousht to termi- nate on the elevated ground dividing the rivers falling into the Atlantic from those emptying themselves into thf St. Lawrence. And in order to ob-iale the suggested difficulty in suiveying the boundary »\long tho highlands, he proposes a referenci* to intermediate sources of rivers (to be named in the Convention) to be connected afterwards by an actual survey. That reference to unknown and nameless sources wt not practicable : and IVlr. King concluded on the 12th May, 1803, a couven- Opinions Enlertained. 128 ilands Is aie Itermi- Itlantic order Jg t'uO jrs (to I actual not >uven- tion with Lord Hawkesbury, which provides for an actual survey of the boundary ; as appears by the following articles of the same : « Art. II. Whereas, it has become expedient ihat the north-west angle of Nova Scotia, mentioned and desc-ibc J in the treaty of peace between his Majesty and the United States, saould be iceitaired and determin- ed, and that the line betv een the source of the River St. Croix., and the said north-west angle of Nova Scotia, should be run and marked ac- cording to the provisions of the said treaty of peace ; it is agreed, that for this purpose, commissioners shall be appointed in the lollowing manner, viz : one commissioner shall be named by his Majesty, and one by the President of the United States, by and with the advice and con- sent of the Senate thereof, and the said two commissioners shall agree in the choice of a third ; or if they cannot agree, they shall *'.ach propose one person, and of the two names so proposed, one shall be taken by lot in the presence of the two original commissioners ; and the three com- missioners so appointed shall be sworn, impartially to ascertain and de- termine the said north-west angle of Nova Scotia, pursuant to the pro- visions of the said treaty of peace, and likewise to cause the said boun- dary line between the source of the River St. Croix, as the same has been determined by the commissioners appointed for that purpose, and the north-west angle of Nova Scotia to be run and marked according to the provisions of the treaty aforesaid." " Art. III. It is further agreed, that the said commissioners, after they shr' have executed the duties assigned to them in the preceding article, shall be, and they hereby are authorised, upon their oaths, im- partially to ascertain and determine the north-western most head of Connecticut River, according to the provisions of the aforesaid treaty of oeace, and likevise to cau?e the boundary line, described in the said treaty of peace, between the north-west angle of Nova Scotia and the said north-westernmost head of Connecticut River, to be run and mark- ed pursuant to the provision, of the said treaty." No objection was made to those provisions : but the Senate of the United ^States refused its assent to the ratification of the Convention, unless an article w&s added explanatory of that which provided for the ijattlenient of the north-western boundary betwee:i the two Powers. This having bee a refused by Great Britain, the Convention was not carkied into effect. Another similar and unsuccessful attempt was made in 1807 by Mr. Monroe then Minister of the United Slates at London. The subject was at last disposed of on the same principle in the year IS 14 by the Treaty of Ghent. But the propositions discussed during the course of the negotiation deserve considerfition. The British Plenipotentiaries at lhu> time, 'vhen explaining what they meant by a revision of the frontiers generally, and after say' Jg that Great m. m «n "i'l ■IM 1 n ■ ■ i - fl * ■ 1 I i 124 Subsequent to 1783. Britain did not desire it with any view to the acquisition of territory, at such, enumerated amongst the subjects of discussion, not the ascertain* ing in the conformity with the treaty of 1783, but "such a VARIA- TION of the line ot' frontier, as might secure a direct communication between Quebec and Halifax." This was not a casual expression, but a deliberate and solemn expo- sition of the terms on which Great Britain proposed to make peace. There could not be a mor^ express acknowledgment than the proposi- tion made under such circumstances, and in such terms, that the desired communication could not be obtained without a variation of the line es- tablished by the treaty of 1783. It wpc only after the explicit declaration of the American Plenipoten- tiaries, that they had no authority to cede any part of the territory of the United States, and would subscribe to no stipulation to that eflTect ; and after having lost all hope of obtaining a variation of the line, that the British Plenipotentiaries changed their ground. It was then, for the first time, gratuitously asserted, that the American Plenipotentiaries were aware that the boundary asserted at present by the American GoV' ernmeiitf by which the direct communication between Halifax and Que- bec became interrupted, was not in contemplation of the British Pleni- potentiaries who concluded the treaty of 1783. A\en. this assertion was accompanied by a declaration, that the British had not anticipated the statement made by the American Plenipotentia- ries, — viz : that they had nr authority "to cede any part, however in- significant, of the territories of the United States, although the proposal left it open to them to demand an equivalent for such cession, either in frontier or otherwise." The American Plenipotentiaries answered, that they had never un- derstood that " the British Plenipotentiaries who signed the treaty, had contemplated a boundary different from that fixed by the treaty, and which required nothing more in order to be definitively ascertained than to be surveyed in conformity with its provisions ;" and t" ■\i they had " no au- thority to cede any part of the State of Massachusetts, even for what the British might consider a fair equivalent." And 'hey subsequently declared <«that they did not decline discussing any matter of uncertainty or dis. pute respecting the boundaries in that or in any other quarter," and that they were " prepared to propose the appointment of commissioners by the two governments to extend the line to the Highlands, conforma- bly to the treaty of 1783." But they added that " the proposal, however, of the British Plenipotentiaries was not to ascertain, but to vary, those lines, in such manner as to secure a direct communication between Quebec and Halifax ; an alteration which could not be effected, without B cession by the United States to Great Britain of all that portion oftho Opinions Entertained. 125 State of Massachusetts intervening between the Province of New Bruns- wick and Quebec, although unquestionably included within the boundary lines fixed by that treaty. To this last observation the British Plenipotentiaries replied, that the British Government never required that all that portion of the State of Massachusetts intervening between the Province of New Brunswic! . and Quebec, should be ceded to Great Britain, but only that small portion of unsettled country which interrupts the communication between Halifax and Quebec, there being much doubt whether it does not already belong to Great Britain. The proposal of the American Plenipotentiaries to appoint commis- sioners was acceded to, and extended to the '^. /hole line of frontier, from the source of the River St. Croix, to the Lake of the Woods. And the contingency of a disagreement between the two commissioners was pro- vided for. No power to vary the line was given in either case ; it be- in^" expressly provided that the boundary should be ascertained and sur- ; '^d in conformity with the provisions of the treaty of 1783. :^.js it appears, that the American Plenipotentiaries denied the in- tentions ascribed to the British Ministers who had signed the treaty ; that they uniformly rejected any proposal to vary the line, and to cede any part of the territory of the United States, or of the Stale of Massa. chusetts ; and that they agreed to the reference, only on the general ground of leaving to an amicable mode of settlement all the questions relative to the whole of their extensive frontier, which had not yet been actually ascertained and surveyed. It may now be asked, wnether a demand made, on a most solemn oc- casion, by the British Governmeni itself, of a variation of the boundary line defined by the treaty of 1783, at the same time that another demand was also made of one half of the great lakes, and of the rights of sover- eignty ove; tve shores secured to the United States by the same treaty ; whether su' ^ * x'ud, under such circumstances, was not a moat expli- cit ackno>^'iv;:^i!P '. of the previous undoubted right of the United States to that territory, aii;estion. 131 pre- ands stance The and a sition uired com- when artly word, ,re- ision ce of ke of e to with mu- ands that trticle in the treaty of Ghent and on two previous occasions, the United States contemplated a similar operation, and not having the slightest con- ception of the pretensions of Great Britain subsequently disclosed, did not apprehend any serious difficulty from the vague suggestions of some doubtful claim, on her part, which were thrown out during the course of the negotiation. The inference drawn from the proclamation and the Quebec Act is, that the boundary line was to connect the head of the Bay des Chaleurs with the head of the Connecticut River, or perhaps, with* the highland which divides the sources of the Chandiere from those of the Penobscot. *< The extremities of the line (it is said) are thus known, but the mode of drawing it is entirely unexplained. An infinite number of such lines corresponding with the description given in the treaty may be drawn." As far as the United States are concerned, the eastern extremity of the line is not the Bay of Chaleurs, but the place where it was necessary to leave the dividing highlands in order to reach the head of the Bay of Chaleurs. On what point of the highlands the intended connection with the Bay of Chaleurs was to take place was left undetermined in the pro- clamation and in the Quebec Act, which did not even mention the west- ern extremity of the bay. By those instruments, the point in question was lefl to the discretion of the Crown, but could not subsequent to the treaty be west of the due north line. The dividing highlands of the pro- clamation of the Quebec Act and of the treaty terminate at Cape Rosier; but they must be left at some point east of the due north line, in order that tlie contemplated boundary may extend to the western extremity of the Bay of Chaleurs. Amongst the infinite number of lines corresponding with the treaty which, according to the author of the essay, may be drawn between the head of the Connecticut and that of the Bay of Chaleurs, he proposes as the simplest expedient a straight line from oae point to the other. And he adduces, as corroborating his theory, the fact, that the River Risti- gouche, which is now the boundary between Canada and New Bruns- wick, and the northwest angle of this last province, which practically is at the intersection of that river with the due north line, are nearly on the straight line which he proposes. He adds that severed of the maps pub- lished between the years 1763 and 1783 had placed that boundary along the Ristigouche, and that New Brunswick had never exercised jurisdic- tion beyond that river. Whence he infers that the Ristigouche and not the line of dividing highlands, was at the time of the treaty considered, as the southern boundary of the Province of Quebec under the previous acts of the British Government. It has never been denied that subsequent to the treaty, the boundary between New Brunswick and Canada, and consequently the north-west i ^ :l I 1 '! \ ! I 132 .Veio Suggestion. ■I. •>, m angle of Now Brunswick might at any time be altered by Great Britain. The fact, therefore, that the Ristigouche is the present boundary, and that the jurisdiction of New Brunswick does not extend beyond it, proves nothing. But if it could be established, that that river was the acknow* ledged boundary at the time of the treaty, it might be inferred that the dividing highlands and the north-west angle of Nova Scotia contempla- ted by the treaty were not south of that river ; and perhaps on the other hand, that the point at which it was necessary to leave the di' 'ding high- lands in ord^ to strike the western extremity of the Bay of Chaleurs, had been supposed to be near the sources of the Ristigouche. ^nd ai the publishers of maps had no precise data in that respect, it is not as- tonishing that some of them should have thus placed the north-west angle and the boundary. All that the United States insist upon is, that the north-west angle of Nova Scotia declared by the treaty must necessarily have been that which had been prescribed by the previous acts of the British Government ; that by the treaty the summit of that angle was placed on the dividing highlands and those highlands declared to be one of the sides of that angle ; and therefore that neither that angle nor that boundary, at least for some distance east of the summit of the angle, were understood at the time of tht .reaty to be in the bed of the River Risti- gouche, or any where else than on the aforesaid dividing highlands. The gentleman cannot seriously assert, that the fact, that the Ristigouche and the present north-west angle of New Brunswick, happened to be near a straight line drawn from the western extremity of Bay of Cha- leurs to the sources of the Chaudiere or of the Connecticut, were at all taken into consideration when that boundary was established by the Crown, or agreed on with its approbation by the two provinces. But, amongst the infinite nnmber of lines which might be drawn between the two points aforesaid, t'ae straight line is precisely that which should in the first place be rejected, since, had that been the boundary contem- plated by the negotiators, it was the only line which without any regard to the topography of the country, and without the slightest difHculty they might have defined with precision. When the author of the essay says, that it was safer and simpler for those negotiators to adopt the straight line, than to trust to the uncertain information respecting the course of mountains or rivers in the interior, he forgets that, instead of pursuing that course, they described the boundary only in reference to the rivers intended to be divided. But it is altogether denied, that the treaty is susceptible of that con- struction now for the first time attempted to be put upon it. It was not till thirty years after the date of the Treaty of 1783, that, at Ghent, the British Government, after having first asked a variation of the boui^'ivy and a cession of territory, for which an equivalent might have been ask- JVeto Suggesiion. 188 liat con- vaa not jnt, the leu ask< ed, did for the first time suggest that there was a doubt whether that ter- ritory or a small portion of it did not under the Treaty of 1783, belong to Groat Britain. In the year 1718, the claim for the first time assumed a definite shape ; and from that time till now it has been contended that the boundary was a line extending about one hundred and twenty miles in a straight line from Mars Hill, to one of the sources of the Chan, dicre, along highlands which divide the waters of the St. John from those of the Penobscot. The claim was in that shape, and thus defined, sub* mitted to the King of the Netherlands. And now after twenty years of discussion, an attempt is made to abandon the claim so long contend- ed for ; and it is for the first time, near sixty years after the date of the Treaty, discovered that the boundary prescribed by the Treaty was not a line of dividing highlands, ia the sense in which those expressions had always been understood by both parties, and by every individual who had attended to the subject both before and since the Treaty, but that it is a district of country of seven millions of acres. The reason assigned is, that the wort^ << highlands" used alonehas sometimes, in one instance at least, been applied to a mountainous district of country. It is not less true that the territory in question has never, as a whole, laen designated by that name, or by any other name whatever till called the contested territory. The true reason is to be found in the physical im- possibility of finding any other line, than that claimed by the United States, which can fulfil the express condition of dividing tho rivers specified by the Treaty. The boundary must ultimately be a line, and the object, in pretending that the whole contested territory is the boun. dary prescribed by the Treaty, is to have ultimately for a boundary a line that will not, in conformity with the Treaty, divide the rivers speci- fied by its terms. It would have been shorter to propose that the clause, which imposes on the boundary along the highlands the condition of dividing the specified rivers, should be struck off from the Treaty. Two Powers might under certain circumstances, and particularly in America, agree to leave between their possessions a certain uninhabit- ed tract of country, not to be occupied by either at least for a limited time. But most certainly such agreement must be made in express terms, and never can be implied or inferred, when the parties actually declare and define what their boundaries shall be. No instance can be adduced of any treaty declaratory of boundaries, and having no special excepl'.on, ever having been concluded between two countries, in which the boundary was a district of country and was not a boundary line in the sense in which it is universally understood, viz : a line, a dividing ridge, the top of a chain of mountains, a river or a lake. In the present instance, the negotiators describe every other part of the boundary with the utmost precision of which it was susceptible. It 12 ■11 ivi 134 .Veto Suggestion. is in every case, a due north, west, or east straight line, or the line along the middle of rivers or lakes, or a lino between two determined points, (from the entrance of the Lake of the Woods to the most north-western point thereof,) or, if an inflected line, by three points (from the en* trance of Lake Superior, through Lake Superior, north-ward of the Isles Royal and Philipeaux, to the Long Lake.) It has been proved beyond contradiction, that they had a knowledge of the topography of the country through which the north-eastern boundary was to pass, am- ply sufficient to enable them to describe any they might have contem- plated, with the utmost precision in reference to rivers. Finally, after the absolute rejection of the proposal, to leave the ques- tion of the boundaries between Massachusetts and ^ova Scotia, embra- cing of course the north.west angle of that Province and the boundary with Canada, unuettled for the present ; and after the negotiators had positively determined, in order to prevent any future disputes, to declare and establish those boundaries by the treaty itself; we are now told that, with that determination and with all the knowledge sufRcient to carry it into effect, they actually made the whole district of country, the bounda- ries of which they had determined to establish, to be the boundary itself; or in other words, that after having determined to establish the boundary lines in question, they left the whole subject precisely as they had found it, to be thereafter a subject of dispute and discord between the two Powers. The author of the essay has displayed a most liberal and proper spirit, in the view he has taken of the exaggerated importance heretofore as- cribed to the subject of difference between the two countries, of the ne- cessity of preserving t'..e friendly relations between them, of the extreme folly of running the risk of a rupture for such an object. He is most sincere in his wishes that the difference may be speedily settled ; and it is much to be regretted that he should by bis suggestion have uncon- sciously thrown another obstacle to an amicable reference to a third party. In such a reference the United States have no guarantee but in the justice of their cause and in the disinterestedness and firmness of the Arbiter. No happier selection could have been made than that of the King of the Netherlands : an enlightened and conscientious Monarch, not afraid of labor, and who would examine *he subject and decide him- self. I am very sure, that, entertaining doubts, which I must be permit- ted to say I do not share, on one branch of the subject, yet not such as positively to decide upon it, he proposed such an arrangement as ap- peared to him most equitable under all the circumstances of the case. But the United States have no means of influencing a decision. Ge- nerally speaking, it would be diflicult to select any Power acceptable to JVew Suggeation. 135 along points, restern tie en- of the proved phy of IB, am- outem- le ques* embra- oundary ore had I declare M that, carry it bounda- ry itself; jouudary lad found the two er spirit, fore as- thene- extreme is most ; and it uDcon- a third lit in the |ss of the It of the [onarch, ;ide him- permit- |t such as It as ap- Ihe case. In. Ge- Iptable to both parties who. from their relative geographical situation, and political position, has not a greater iRterost in cultivating the friendship of Great Britain in preference to that of the United States. Hence the necessi- ty that there should be nothing vague, indefinite, or arbitrary in the question submitted to the Umpire : and it is for that reason that his au- thority was limited to the decision of a boundary in conformity with the provisions of the treaty of 17S3. If upon a view of the whole case, the arbiter thinking, as the author of the essay does, that neither of the two lineo, heretofore claimed by the two parties respectively, fulfils the conditions of the treaty ; and be- lieving, as appears to me iiidubitab'e, that if the American line does not, no other possible line can divioe the specified rivers, ha must ne- cessarily decide that the treaty cannot be executed : and, in that case, the two Powers would be lefl in no worse situation than they now are, and must settle the difference by an amicable adjustment between them, selves. But the author of the essay contends, that it is not necessary that the boundary line should actually divide the rivers. He thinks that provid- ed it unites the Bay des Chaleurs and the sources of the Chandierr, it will be in conformity with the provisions of the treaty, and therulbre tb out of the infinite number of Hues which may be thus drawn, the " may select any one he pleases under the authority given to him to uecide according to the provisions of the treaty. In vhat view of the subject, it is a mockery to say that his business will be <' to fix the position of the northwest angle of Nova Scotia, and mark out the unascertained portions of the boundary according to the provipiions of the treaty, without determining, previousiy to the forma- tion of a convention, any of the conditions on which the decision is to be made." The author expressly contends that the entire upper busins of the St. John and Ristigouche, that is to say, the whole contested ter- ritory are, according to the treaty, the boundary intended to divide the waters of the St. Lawrence from those of the Atlantic Ocean ; and he insiuts that the treaty prescribes nothing concerning the manner in which the ultimate boundary line is to be run, provided it keeps within the limits of those basins and unites the two extremities which he has designated. The proposition is simply that, under the proposed refer- ence, the Arbiter should have a right to decide what shall be the bounda. ry line without 9ny re ,ard to the provision of the treaty which directs that boundary to be along'the highlands which divide the specified rivers. It is nothing more or less than a renewed attempt to dispense with that express and fundamental provision. Whether the government of the United States and the State of Maine will be disposed to refer the subject in such unrestricted and indefinite V<>ii i ■ 136 Report ofMesn-$. manner, it is not for me to say : nor do I knoT bow far the govciTt- raent of Great Britain may coui..enance the suggestion. But it gives such new aspect to the question of reference, that it cannot but protract and embarrass the pending negotiations on that subject. If referred ia that indefinite manner and without a previous under- standing with Great Britain, the Arbiter will be authorized, first to de- cide whether, according to the new suggestion, the whole disputed ter- ritory is the boundary prescribed by the treaty, and if he should decide this affirmatively, any line whatever, within ^e limits of that territory, which he might deem proper to designate, would be the boundary line according to the terms of the treaty. On that principle it is not per- ceived, for what reason the author of the essay considers the award of the King of the Netherlands as not binding on the parties. According to his theory, the line recommended by the King conformed as well to the terms of the treaty as any other. No. III. Observations on the report of Messrs. Featherstonhaugh and Mudge. The important questions at issue between the two Powers, are : In reference to the British line as heretofore claimed or a3 modified by tho late English Commissioners ; whether Highlands which, for three- fifth;, of the distance, divide the waters of the Penobi:cot from those of the St. John, are Highlands which divide rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean. As relates to the boundary Uniformly claimed by the United £ totes ; whether the St. John and the Ristigouche are under the treaty to be considered as falling into the Atlantic Ocean ; and whether the term " Highlands dividing certain specified riyers" implies a mountainous ^Tound having peaks or visible elevations. As applicable to both lines ; whether the Negotiators had a kr ow- ledge of the topography oi tho country, sufficient to enable them to de- scribe with precision, in reference to rivers, any boundary they intend- ed to prescribe. Tho report of the late Britii^h Commissioners is silent on the two first, and tnrows no additional light on the two last questions. The first part and the latter port! n of the second part treat only of points of sub- ordinate importance. Tbnur^ rejecting one of the poi^ition.s assumed Featherslonhaugh and Mtidge. 187 & totes; ty to be krow- to de- iiitend- llhe two ?he first of sub- Itssumed by ilijir predecessors, the Commissioners appear to have taken for granted, that the true questions at issue had been definitely settled by the former agents of the British Government. The first part of the report is intended principally to prove that Mas- sachusetts had not at the date of the treaty any claim to the disputed territory. This proposition will be examined in detail, not on account of its intrinsic importance, but because the Commissioners consider that point ^h one concerning which they have made a great discovery. By tho ciK ■'•of 1791, the territory called Acadia or Nova Scotia, and all that tract of lani lying between the said territories of Nova Scotia and the said Province of Main, (meaning the ancient ]?rovinco of Main which was bounded on the east by the Kennebec River,) were annexed to the Province of Massachusetts* Bay. It will be seen, by reference to the Introduction to the preceding ar- gument, that, by the operation of the treaty of Ryswick, Nova Scotia was severed from Massachusetts, and erected into a separate govern, metkt after its cession to Great Britain by the treaty of Utrecht ; that it was aflerwarJs questioned by the British Government, whether the tract of country lying between Nova Scotia and Kennebec was not also taken from iMassachusetts' Bay by the operation of the tieaties of Breda and Ryswick ; that, notwithstanding the opinion given in 1731 in fa- vour of the claim of Massachusetts by the Law officers of the Crow^ the British Cabinet did not consider the question as defin'lively settled as late as the years 1763-1770 ; but that the question respecting tho validity of a charter couid not be decided otherwise than by a legal pro- cess, and that this was never attempted by the British Government. As regards that objection which embraces not only the territory now disputed, but the claim of Massachusetts to the whole country along ihe Sea Coast between the St. Croix and the Kennebec, the report does not appear to contain any thing which had not already been mentioned. But there is an omission, concerning the restitution by Great Britain to France agreed on by the tr -nty o^ Ryswick, as understood by the British Government subsequent to that treaty. The following pass.ige occurs in the first American Statement laid before the King of tho Netherlands : " Great' Britain, however, agre.d by the Treaty of Ryswick of 20{h September, 1697, to restore to France 'all countries, islands, forts, and colonies, wheresoever situated, which the French did possess before the declaration of war.' Acadia, or Nova Scotia, being clearly embraced by those expressions, and being thus severed from the British Domin- ions, the clause of the Massachusetts' Charier, which annexed that ter- ritory to r.Iassachusetts, was virtually repealed, and became a nullity. Tke understanding of the British Government of the extent of that res- 12* i»i ■ 138 Report of Messrs, m W iitntion, tcill be found in the following sentence of a letter from the Lords of the Board of Trade, dated ZOth October^ 1700, to tJus Earl of Bella, mont, the Governor of Massachusetts, viz : *' as to the Boundaries, we have always insisted, and shcdl insist upon the English right as Jar as the River St. Croix." The first part of that passage, as far as the word " nullity " is quoted, but the latter part which shows how the obligation to restore was under, stood by the British Government, is omitted ia the report (page 15,) and is not stated any where else. It is, however, principally to the limits of the claim of Massachusetts, that the objections in the report do apply. In that respect, the report bos adued two facts to those which had been previously quoted ; first, that the French Government of Acadia was, in the Commission of 1603 to De Monts, limited on the north by the 46th parallel of latitude ; secondly, that the intervening possession of New York by the Dutch was at least one of the reasons why the Grant of 1664 to the Duke of York was renewed in 1674. The renewed grant, however, embraced both New York and Sagadahock. It is impossible to say how far the limits of Acadia were enlarged or altered by France subsequent to the first commission of De Monts in 1603. And, if the respective claims of France and of Great Britain were the subject of discussion, I would admit that, in my opinion, and contrary to the construction put on the Treaty of Ryswick by the Board of Trade in their letter to the Earl of Bellamont, the restitution to France, as agreed on by the said Treaty, of all the countries which she did possess before the war, extended as far west as the Penobscot. But, in a discussion between Great Britain and a British Colony, respecting the chartered boundaries of that Colony, the public Acts of Great Bri- tain and her construction of her treaties with foreign nations can alone be taken into consideration, unless set aside by a legal process and de- cision. I agree entiiely with the Commissioners in the opinion, that the claim of Massachusetts, both as to the whole country in question and as to its limits, was, till the year 1763, exclusively derived from the Charter of 1791. The reasoning adduced in 178"2 by a committee of Congress, in order to show that the claim of Massachusetts might ex- tend along the Sea Coast as far east as the St. John, appears to me alto- gether erroneous. The claim is founded on the incorrect presumption, that the former grant to the Duke of York might have been interpreted, as extending to that river. But supposing that conjecture to have been well founded, there was an end to the Grant and to its boundaries. The Grant had merged in the Crown at the accession of James 2d to the throne, and was no longer in existence. No allusion whatever is made c a I I I tl Fealherstonhaugh and Mudge. 139 r that the ion and rom the nittee of ight ex- me alto- mption, •pre ted, ive been s. The !d to the is made jrc to it in the Charter, the boundaria." of which are determined by the charter itself and no where else. The grant had been quoted for the purpose of showing the cliain of title, and that there was not at the date of the charter any previous conflicting British claim still in exist- ence. For the same reason, the allusions made in the report to the boun- daries of that grant, as applicable to the chartered limitd of Massachu- setts, are wholly irrelevant. It is remarkable that the charter of Massachusetts should have been quoted in the report iii detached paragraphs, and omitting the only por- tion which relates to its northern and eastern boundaries, but in lieu thereof alluding to the boundaries of the grant to the Duke of York. The passages of the report in which the charter is quoted will be found in the extracts appended to these observations. « Now, it appears to me, that the claim of Massachusetts' Bay would have been more clearly exhibited, by quoting together all that part of the charter which related to boundaries, and that the inferences of the com- missioners might have been more correct and appropriate, had they ad- verted to, instead of omitting the only part of the charter which shows, what were the intepded northern and eastern boundaries of the territo- ries east of the Kennebec annexed to the Colony. Referring to the Introduction to this argument for tho clauses at large, that now aU luded to is as follows : " That no grant or grants of any lands lying or extending from the River of Sagadahock to the Gulf of St. Lawrence and C' tda Rivers and to the main sea northward and eastward, to be made or , ^d by the Governor and General Assembly of our said Province, be of any force, validity, or effect, until we, our heirs and successors, shall have signified our or their approbation of the same." The words in italic are no where quoted in the report, though the re- servation of the Crown to approve the grants is quoted (page 18 ;) and the term " SagaJahock" is substituted for the descriptive words in the charter : which substitution may refer the reader to the defunct grant to the Duke of York, and to its boundaries as quoted before in the report, (page 14). All the inferences and suggestions in the report, therefore, which may have been deduced from the terms of that Grant from any other source than the terms of the charter fall to the ground ; and the argument resolves itself into this. The territories onnexed by the chirter to Massachusetts' Bay were, Acadia or Nova Scotia and the tract f land lying between it and the Province of Main : (or in other woroi, to the River Sagadahock or Kennebec, which by the charter was the eastern boundary of Main :) the boundaries of both Nova Scotia and the said tract of land, were { 1 m "■■^s i. 140 Report of Messrs. northward and eastward to the Gulf oi* St. Lawrence and Canada Rivers, and to the main sea. If it could be proved, therefore, that the boundary between Nova Scotia and the said tract lying west of it, and still claimed by Massachusetts, was at the date of the charter a north-west line striking the River St. Lawrence, at or near Quebec, it would follow that, after the acknowledged separation of Nova Scotia from Massachusetts' Bay, this Colony did not extend to the River St. Lawrence, and the whole or greatest portion of the now disputed terri- tory \ms without its boundaries. This is, in fact, what the commission- era contend for. On that they principally rely and announce some im- portant discoveries mi'de by them, concerning the grant of Nova Scotia, to Sir William Alexander in 1621. It is undoubtedly true that the boundaries of Nova Scotia were not described in any other public act of Great Britain at the date of the chaiter; though it cannot be conceded that this was equally true at the date of the Treaty of 1783. The case, as stated in the report, will be found in the appended extracts. It will there be seen that the object of the commissioners is to prove, that the line described in the grant, as one drawn from the western source of the St. Croix towards the north to the nearest roadsted, river or spring emptying itself into the great River de Canada ; (whence the boundary proceeds eastwardly along the sea-shores of the said river) means a north- west line, and at the same time a line to the source of the River Chan, diere, and then down that river to its mouth to Quebec. The extract from the report hereto appended must be compared with No. XIV, of the recapitulation of the report hereiuaAer quoted. With respect to a line drawn from the western source of the St. Croix to the nearest source of the Chandiere, it would be a Hue towards the west and not towards the north. It will also be seen by the extract, that the great discovery, by which the theory of a north-west line exclusively of any other is sustained, consists in the insertion in the text of a comma, before the words towards the north, where first mentioned in the grant. In the authentic Latin copy of the grant, ccimmumcated by the Bri. tish Government, there are no commas. The copy is transcribed from the report as published by order of Parliament ; and a comma is there inserted after the words versus Sepientrionem where first mentioned ; which makes the passage read as it has heretofore always been read. It must have been so placed by the compositor of the Parliamentary Press. The commissioners clearly intended that the comma should be placed before and not after versus Sepientrionem, and it must be so un- derstood by the reader. Whether this emendation, which is the great discovery of the com- missioners, be admissable, is left to the decision of critical scholars. Feather stonhaiigh and Mudge. 141 un- My business is with the reasoning of the report ; aud the reason assign- i'.d for the emendation is not sufficient, (e) The word north, applied to the latitude of any country, known to be situated north of the equator, though superfluous, is perpetually used, and it is thus used several times in the Treaty (to the forty-fifth degree of north latitude.) Every body knows that the latitude, whether north or south, is always counted from the equator. The words ab equinoc- iiali liiiea, in the grant, are equally superfluous, and they correspond with the words in the Treaty, "in latitude of thirty-one degrees north of the equator." The object of the emendation cannot have been to connect the words versus Seplentrionem with the words ad occidantem o( the next sentence. For if the union of the two was necessary in order to express the north- west, it would follow that versus Septentrionem alone was not sufficient for that purpose. But the true object of the emendation was to detach those words from the first sentence, where, being applied to latitude from the E"/- .ior, they must necessarily mean due north. And the commis- sioners call the tracing on maps of a due north line from the source of the St. Croix to the St. Lawrence, an erroneous construction of the ex- pression towards the north. But those words mean a line which inclines more to the north than to the east, or the west, and they necessarily embrace a due north line. (Jnder the broadest legitimate constructior^ it cannot vary more than from due north-east to due north-west. The American translation quo- ted in the preceding passage of the report is undoubtedly incorrect in substituting the word JVorth for towards the JS'orth : first, instead of nearest is also wrong, though in fact it has the same meaning ; but Bay, as a translation of naviwn Slatio is admissible, since Bay of Fundy, with the adjunct great, and St. Mary's Bay, are both designated in the Grant as naviwn Stationes. I coincide, however, in the opinion of the commissioners that roadsted (or road) is the best equivalent. " Naval Station," in the literal translation of the report, has not in English any definite meaning, and would apply to vessels blockading or watching the entrance of a port with as much propriety as to a bay or road. But the scrupulous literal translators should not have rendered the words, per maris oras liltorales, by the words " by the g«//' shores" in- stead of " sea shores." The reason for that alteration seems to have been, that the words sea shores, as designating the place where the line running towards the north must strike the St. Lawrence, Seemed to ex- clude Quebec and the upper part of the river. (e) The reason assigned, is that the words " versus Septentrionem," if connected with what precedes, are superfluous. But the reader must refer to the appended ex- tracts from the Report. !; I b ■ \ i0\ Hi i 1 1 nl 142 Report of Messrs. In order to show how the western boundary of the Grant to Sir Wil' Ham Alexander was understood, the commissioners, instead of seeking for ancient English maps, have appealed to a Venetian map by Coro< nelli, dated 1689 ; at which tim*^, as they say, the nature of the Grant must have been well understood. How it was understood by Coronelli will appear by looking at his map, in which he has placed the whole of Nova Scotia west, instead of east of the River St. Croix. The country east of it, or the present province of New Brunswick he calls Eteche- mius : he transposes the Penobscot and the Kennebec and confines Acadia to the peninsula. The commissioners have given two copies of the map, in one of which there is a coloured line from the source of the St. Croix to Bay des Chaleurs. Which of the two is the genuine transcript I cannot say. {- It is further stated in the report tbs and indispensable property of dividing certain rivers, have substituted for those Highlands, arbitra- ry lines, chains of mountains and imaginative axis of elevation, all which have the singular advantage of being moveable at will. The Featheratonhaugh and Mudge. 149 s con- aitned boun- ot, ac- does is true d with in, the sides, ispond took nited claim vision er he, a sub- or the bject, those operty rbitra- n, all The principle on which the right of the United States does rest is so clear and so obvious, that aH those, who have been engaged on their part, have used the same fundamental arguments. I am bound to say that, when employed as one of those agents, I found i\\\ :hose arguments al- ready stated by Mr. Kiadley, the agent, and, in hin opinion of the case, by Mr. Van Ness, the commissioner of the United States under the Ghent commission ; and that, jointly with my associate, Mr. Preble, wa were uhle to add but little, and that principally for the purpose of refu- ting, perhaps at greater length than the occasion required, the various and varying objections raised by the British agents. The commissioner on the part of the United States was of opinion that, with respect to two conflicting and partly conjectural maps, both should be either admitted or rejected. The British Commissioner want- ed the British nap to be admitted and the American map to be rejected. The propofnl to examine the surveyors under oath was very properly dis- missed ; it could have added nothing to what was already known. Neither Mr. Odell or Mr. Johnson could or would have sworn a single iota beyond the facts, viz : that, from certain spots they had taken views of the surrounding country, and that they did believe that, as far as could be ascertained from such data, their plans exhibited a correct view of tlie ground. It is said, that one of those conjectural maps had, on the part of the United .States, been accidentally put on the files of the proceedings of the Board. Tt n ill not be asserted that, either Mr. Commissioner Van Ness, or the agents who prepared the statements laid before the King of the Netherlands, rested in any degree their respective opinion and arguments on that map. But I will add, that there was in fact on the files of the Board a map of the same character, on the part of Great Britain. That map unites Mr. OdelPs survey of the Restook and the sketch of the country as viewed from Mars Hill and Houltun plantation, with Mr. Campbell's sketch of his ''eight of land. A reduced map of this will be found on the same plate with the map reduced from that of the late British Commissioners. And that map is introduced, in order to show the extent of the discoveries of the Com- missioners. They have the merit of having ascended the Restook high- er than Mr. Odell, and of having penetrated to the sources of that river, thence to those of the Atiguash and of the Penobscot, near which they met the eastern extremity of the ridge explored by Mr. Campbell, and thence to the sources of the western branch of the St. John and of the Etchemin. They are entitled exclusively to the credit of having ascer- tained the actual elevation of various spots in the vicinity of their lino of exploration. But they cannot claim to have discovered a new line of Highlands : they have only ascertained with precision the elevation 13* ij ; ■ !1 :l *i m IJ: 160 Report of Messrs. and nature of the ground, erroneously claimed by Great Britain as the treaty l)Oundary ; but the position of the Highlands thus claimed had been discovered, and was fully indicated by the former explorations of the two British surveyors, ^h. Odell ard Mr. Campbell. I pass with pleasure to the appendix of the report which presents a most striking contrast with the report itself. This appendix is a plain statemenl, written with equal simplicity and perspicuity of the instru- ments used, of aM the precautions taken in order to secure a true result, of the barometric observations, of the line of exploration andof thediffi. culties xvhich the commissioners had to encounter. It is astonishing that they should have performed so much and so well in so short a time. I am sure that all the observations were made conscientiously and with all the skill which may be expected from the present state of science ; and I place entire confidence in the estimate of all the elevations de- ductd from those observations on which they rely themselves. No as- tronomical observations are mentioned; nor is any statement given either of the data by which the distances and courses were estimated, nor of the elements on which the section of the line between the points actually observed is founded. The United Slates attach no importance to those facts ; but if they are deemed of any importance, it seems to me that all the surveys on both lines ought to be made jointly and not separately. The object is that all the facts thought important by either party, and which may be ascertained, should be so ascertained as that there should be thereafter no discussion about those fact?, and that, whether in a direct negotia- tion between the parties, or still mora so if the subject should be sub- mitted to an arbiter, that discussion should be confined exclusively to the inferences which may be drawn from facts mutually agreed on. The first and latter portions of the second part of the report (pages 37 to 42 and 51 to 57) are a commentary on the appendix : I might in- deed say that the appendix is the report, and that what is called the re- port is the commentary. In this, the commissioners generalize much beyond the limits of their exploration, and state their theory. Without a knowledge of the information on which they relied for that which did not fall under their own observation, it can neither be admitted or denied. They admit that there are various lines of what have once been con- tinuous ridges, leaving only peaks at great distances from each other : they speak of one within the acknowledged boundaries of the United States extending from the Bald Mountains to the Katahdin, and which they say is connected with Mars Hill. Many others might probably be found in a country, which from the White Hills, the highest elevation east of the Rocky Mountains, to Bay Chaleurs and Cape Rosiers, is a z A ti t( L o Feather atonhaugh and Mudge. 161 eu con- other : United d which bably be ilev&tion )siers, ia traversed by various groups of mountains without any apparent regu- larity. But, according to the theory, there are but two that should be taken into consideration. The commissioners say that the Green Mountains, which run from south to nnrth between the River Hudson and the Connecticut, divide themselves into two branches on reaching the 44th degree of north lati- tude ; that the southern branch holding its course north-easterly sepa- rated the head streams of the River Chandiere from those of the Con- necticut, of the Kennebec, and of the western branches of the Penob- scot ; that this is the ridge described. by Pownall, and designated in the proclamation of 1763 ; that further to the east, its continuity becomes more interrupted, but that though with less elevation it still continues to form a part of what they call the axis of maximum elevation ; and that, from Nictor liake situated about fifty-six miles from Bay Chaieurs, the same continued ridge again cises in its direction towards thai bay to the height of two thousand feet. And they conclude by saying : " We therefore present this axis ot maximum elevation of the whole country as the true Highlands intended by the 2nd. article of the treaty of 17S3, uniting to the character of « Highlands," as contradistinguished from lowlands, the condition required by the treaty, of dividing the " riv- ers that empty themselves into the St. Lawrence from those which flow into the Atlantic Ocean, to the north-westernmost head of Connecticut River." Those true highlands which, it is asserted, divide the rivers that empty tb'omselves into the St. Lawrence from those which flow into the Atla ic Ocean, do not, for more than two hundred miles in a straight iine, divide the tributary streams of the St. Lawrence from any river whatever : the sources of those tributary streams do not from the source of the Chandiere, for the whole of that diistance touch those true dividing highlands in their north-eastwardly course, and do not approach them nearer than one hundred miles for a considerable portion of the line of those highlands : and those true highlands, which fujfil the con- ditions required by the Treaty, of dividing the waters of the River St. Lawrence from the Atlantic Rivers, do not divide, intersect, or touch any other rivers than the St. John, and the tributary streams of that river, or of those which fall into the Bay Chaieurs : to which m st be added, that according to the British construction of the Treaty, neither the St. John, nor the rivers that empty themselves into the Bay Chaieurs, fall into the Atlantic Ocean ; so that those true dividing highlands fulfil the condi- tions imposed on them by the Treaty, by dividing, intersecting, or touching no other rivers but such as fall neither into the River St. Lawrence, nor, according to the British pretensions, with the exception of some branches of the Penobscot, into the Atlantic Ocean. II m m / ij 152 Report of JMesars. To this assertion of the commissioners it is not intended here to ob- ject. It is only, and without adducing any proof in support of it, the repetition of that which has been asserted on the part of Great Britain. It has already been stated at the beginning of these observations, that the commissioners did not pretend to argue any of the great questions at issue, but took for granted, that all the assertions, however extraordi- nary they might be, which had been made on the part of Great Britain, had already been also demonstrated. it may, however, be observed, that the commissioners have contrived, which was really difficult, to make the British claim still more untenable than as before contended for. Their line differs but little from that traced in 1S27 on the Map A, by the British Plenipotentiaries, as that claimed as her boundary on the part of Great Britain. It commences on the due north line, a few miles north of Mars Hill, and, without re- garding the division of the sources of the tributaries of the St. John, from those of the various branches of the Penobscot, it intersects obliquely the line heretofore contended for, and meets it several miles south of the Metjarmette Portage, which actually divides a source of the Penobscot from the source of a tributary of the Chandiere. This last alteration was made from love for mountains, and aversion for flat grounds destitute of conspicuous elevations. In so doing, the commis- sioners have included within their line even some of the head waters of the Penobscot; and they have repudiated several miles of the highlands acknowledged by both parties, and which actually divide the waters of the St. Lawrence from those of the Penobscot According to the theory, the northern branch of the Green Mountains leaves the southern branch or axis of elevation just described in about forty-four degrees north latitude, and pursuing a more northerly course passes to the north of Lake St. Francis, and crosses the Chandiere ; whence it may be said, by its occasional peaks, to hold a course nearly parallel to the River St. Lawrence until it reaches the District of Gaspe. This branch, whether imaginative or real, is described by the commis- sioners, less as a continuous chain, than as being traced by isolated peaks separated by wide intervals of marshy tabular lands. But they say, which may be perfectly true, that the sources of several tributaries of the St. Lawrence, particularly the Chandiere, the Rimousky and the Metis, have their sources many miles east or south-east of the peaks which form a part of that apparent continuous chain. Whence they conclude that it is superfluous to add, that *' the American highlands are deficient in the character required by the Treaty, viz : of dividing the St. Lawrence from the Atlantic Rivers." But this is not all. That northern branch of mountains, taking a course a little east of north, leaves the north-westernmost head of Con- Featherslonhatigh and J\ludge. 168 are the iga on- nectlcut River from forty to fifty miles to the south ; a circumstance of itself conclusive. " For the simple fact of that ridge having no con- nection with the highlands where the Connecticut River takes its rise^ and of it6 passing at a distance of from forty to fifty miles north from the source of that river, deprives the said northern branch of mountiiins of all reasonable pretension to be the highlands intended by the Treaty of 1783." All which may be very true, as applied to the northern branch, whether theoretical or real thus described in the report. But the commissioners in their recapitulation (XIX.) say ; "we have shown- that the line of highlands claimed by the United States, to be the highlands of the Treaty of 1783, &c,, passes at least fifty miles to the north of the north-westernmost head of Connecticut River, and therefore could not by any reasoning be shown to be the 'highlands* of the Treaty of 1783 ; those highlands. being required by that Treaty to go to the north-westernmost head of Connecticut River." That is to say : that the commissioners having discovered, or thinking that they have discovered a branch or chain of mountains, parallel to the River St. Lawrence, which, as they say themselves, intersects several tributary streams of that river, do declare by their own will and authori- ty that, that north branch or chain is the " hi^^hlands " claimed by the United States. In vain have the United States repeatedly declared, that they were bound by the terms of the Treaty, that their boundary was the ground which actually divided the sources of the tributary streams of the St. Lawrence, from those of the St. John and other At- lantic Rivers ; that they could not take the latitude of construction as- sumed by the British Agents, and claim as part of their boundary any mountains or peaks which were not on the dividing ground. The commissioaers insist that their own northern branch or chain of moun- tains, which is not and never has been claimed by the United States as their J boundary, is their boundary. And in as much as the said real or fictitious northern chain does not fulfil the conditions of the Treaty, and passes fifty miles north of the sources of the Connecticut, they conclude thai the line actually claimed by the United States, is fi[ly miles distant from the head waters of the Connecticut, and does not fulfil the condi- tions of the Treaty. The assertion is so ludicrous that we forget its audacity. In the course of that extraordinary part of the report, this passage oc- curs : " in point of fact, no rivers are divided in their course, at any point of the country, along the line thus claimed by the Americans, as carrying out the intentions of the Treaty." If by the words thus claim- ed the northern branch of mountains of the commissioners is meant, there is nothing further to be said about it. But, if because the tribu- taries of the SU Lawrence and those of the St. John are so situated, Hi ;% ill ) .'till 1 S.'! 154 Report of Mesari. that they often run parallel to each other, so that the source of the stream that falls into the St, Lawrence, lies south of the source of the correspond- ing tributary stream of the St. John ; if because, in the language of the country, those respective tributary streams interlock, it is meant to say, that the dividing line is impossible ; I would answer that the United States do not claim for their boundary in that quarter a straight line, but the boundary as Nature has made it, and with all its sinuosities. 'J his construction is not, however, ascribed to the commissioners ; though it would only lead to the annihilation of the ground which divides the rivers ; and this does not differ niuch from the assertion, that the Treaty does not require those rivers to be divided, which it has declared must be divided. There is a circumstance which seems to have embarrassed the com- missioners. Facts are generally very annoying to theorists ; but they are very apt, instead of correcting their theory according to the facts, to adapt the facts to the preconceived theory ; and I do not know why the commissioners should have been arrested by that circumstance. Their axis of maximum elevation is broken in the middle by the River 3t. John. Thence to the sources of the Restook they found a number of elevations, one of which only reaches 1000 feet, and the other vary from 625 to 880. And east of the St. John, for a considerable distance be- tween it and the vicinity of Nictor Lake, the average elevation seems to have been below 1000 feet. There, mountains are found exceeding 2000 feet ; and in the vicinity of the sources of the south branch of the St. John, we find again the same elevation. The portion of the chasm lying east of the St. John doe? not seem to have troubled much the commissioners ; and the United States care about neither. But before proceeding any farther, an observation intrudes itself, which, though un- important in the view taken by them of the subject, may have its effect on others. The average elevation of the British line between the due north line and the sources of the Aliguash is under 1000 feet. The commission- ers, in passing over the portage between the head of the Metawaquem or west branch of the St. John and the River Etchemin, a tributary of the St. Lawrence, did not take the elevation of that portage which is on the boundary claimed by the United States. But they found the height at the forks of the St. John and Metawaquem to be 929 feet, and that of Lake Etchemin to be 943 feet. And as the portage or dividing ground between those two points must necessarily be more elevated than the rivers, the sources of which it divides, that elevation is greater than that of the British line east of the sources of the Aliguash. Since therefore the commissioners do reject that portage as not fulfilling the conditions of the treaty, it is clear that it is thus rejected, not on account of its want- Featheratonhaugh and Mudge. 160 ing the requisite positive elevatiou, but solely because it is a table land destitute in its vicinity of peaks or apparent mountains. Now it cannot be denied, that the word " Highlands," even used alone and separated from its ine ing the commissioners, to substitute the Cheputnatecook and its source for the place above stated, in favor of which the commissioners had pre- pared their decision. This appears from the following extract from the British Agent's application to the Board. The underwritten agent also begs leave to lay before the Board, an origiual letter, dated Providence, 3.^d of October, 1798, from Robert Liston, Esq., at that time his Majosty's Minister Plenipotentiary to the United States, whom his Majesty's Agent at that time thought it his duty to consult, before he could feel himself authorized to assent to the 14 1^ m m i ^■t m fill ■ ) ! ' Ilk 158 Report of Messrs. said proposal of the Agent of the United States at that time, to rcconi- mend to the said commissioners uu Jer the fifth Article of the said Treaty of 1794, to alter their decision, as afore3k:id, respecting the source of the said River St. Croix, which letter was addressed to, and duly received by, the said Agent of his Majesty before the same commissioners, and is in the words and figures following, viz :" « Private." « Providence, 23d October, 1798." « Sir : " I have considered with attention your letter of this day ; and it ap- pears to me evident that the adoption of the River Chepntnatecook, as a part of the boundary between his Majesty's American Dominions and those of the United States, in preference to a line drawn from the easternmoiit point of the Scoodiac Lakes, would be attended with considerable advan* tage. It would give an addition of territory to the Province of New Brunswick, together with a greater extent of navigation en St. John's River ; and above all, a larger stretch of natural frontier, calculated to prevent future difficulties and discussions between the two countries. If, therefore, by assenting to the proposal of the American Agent, you can bring about the unanimous concurrence of the commissioners in this measure, I am of opinion that you will promote his Majesty's real interests ; and I will take the earliest opportunity, with a view to your justification, of expressing these my sentiments on the subject, to hU Majesty's Secretary of State." 1 have, &c., Ward Shipman, Esq. (Signed) Robert Liston." It is evident, that if the question between the Scoodiac and the Maga- guadavic, so much more important than any of the considerations alluded to by Mr. Listen, had not already been decided, and if, as most erro. neously stated in the Report, that decision had depended on, or had in any shape been connected with the subordinate question respecting the true source of the St. Croix, that subject, the question between the Scoodiac and the Magaguadavie, to which Mr. Liston does not even allude, would have been mentioner! by him, as the peremptory reason why the proposal respecting the source of the river should be ac- cepted. The British and American agents were in fact the representatives of their respective governments, and the commissioners were the judges. When those agents acting for their governments agreed on the alteration and jointly applied for it, the commissioners as judges gave it their sanction and decided accordingly. It will be seen by the map that a due north line, drawn from the out- Featheratonhaugh and Mudge. 169 Ires of Idges. lation their out- i let of the Scoodiac Lakes, would have intersected the Chepunatocook Lakes and thrown in the British territories the small tract of land con- tained between such a north line and the Chepunatecook. There were within that tract several American grants and settlements ; and it was in order that the existing state of things should not be disturbed, that the American agent made the proposal. It was gladly accepted by the British agent, because the source of the Chepunatecook was west of the place fiist agreed to by the commissioners, and that therefore Great Britain would by the alteration gain a much greater territory north of the waters of the St. Croix, and principally because the due north line drawn from the source of the Chepunatecook would cross the River St. John higher up and farther west. Neither the opinion of the Commissioners of the propriety of the decision, nor mine, are of any inpottance. But since they have given theirs, I may be permitted to say, that the decision appears to me to have been correct in every respect. The River St. Croix is designated in the Treaty by that name and by that name alone. Having ascertained which was the river thus designated, visited and described by Champlain from its mouth to the head of tide water ; and the words the source hav- ing been substituted in the Treaty, as they had been since 1763 in all the Public British Acts, for the words loesterninost source of the grant of 1621 to Sir William Alexander ; the Commissioners had nothing else to do, than to decide what was the true source of the River St. Croix thus recognized as being from its mouth to the head of tide water, the true River St. Croix contemplated by the Treaty. The names given by the Indians to the several streams or branches of that river were not alluded to in the Treaty, and had nothing to do with the decision. And it will appear by an inspection of the map, that the northern branch, which the Indians thought proper to designate by the name of Cheputnate- cook, is of all the branches of the rivers considerably the longest and the straightest, and that therefore its source must be considered as the true source of the whole River, (h) The substance of the whole argumentative part of the report has now been stated, and it may be seen, supposing all the propositions which it contains to have been proved, whether they can in any degree affect the decision of the true questions at issue. Even supposing the line of Highlands explored by the commissioners to be what they call the axis of maximum elevation of the whole country between the Connecticut and the Gulf of St. Lawrence, this does not prove that that axis, which (A) It might !iave been, added that in the dialect of the Passamaquoddy Indians, Scoodiac dues not meau lowland but burnt land, that it is derived from scoot fire and acki land. I-' i*. I n>i ■HI I l«ivhere it found them : indeed it has in one respect placed the British claim on even worse ground than that heretofore relied upon. The commissioners say that the former British agents were wrong in denying that the line of demarcation established by the ancient provin- cial boundary, was intimately connected with the boundary intended by the treaty of 1783 : and they affirm, expressly, that the boundary de- scription, &c. contained in the Royal Proclamation of 1763, in the Quebec Act of 1774, and in the treaty of 1783, are idei 1 with each other. I do not know by whom the British statements laid before the King of the Netherlands were prepared : from internal evidence it might be in- ferred that both were not written by the same person. But whoever may have been the author or authors, those documents are respectable papers, written in good taste, without any attempt to distort or misrepresent the arguments of the other party ; and, considered as what they purport to be, viz : pleadings on the part of Great Britain before the arbiter, they appear to me to contain all that could be said on the subject, and to have no other deLits but those inherent to the very bad cause which they had to defend. The writers understood thoroughly their case, and saw clear, ly that, if they admitted that identity of the boundaries described in the Proclamation and in the Treaty, for which the United States contended, the question was given up, and they would lose the only faint hope of success they might entertain. It is evident that, if the .substitution, in the clause of the treaty which relates to the division of rivers, of the words "Atlantic Ocean" in lieu of the word "Sea" used in that clause of the proclamation which de- scribes the southern boundary of the Province of Quebec, has produced such an effect as to exclude in the treaty the Ristigouche and the St. John from the class of rivers intended to be divided, the boundaries de- scribed in the two instruments respectively are widely different ; and this Fealherslonhaugh and Mudge. 161 vhich lieu de- [luced St. de- Ithis is the constriiotion for which the authors of the British statements laid before the King of the Netherlands contended. It is equally evident that, if the boundaries described in the two in- struments are identic, as maintained by the United States and by the late British commissioners, the substitution in the treaty of the words "Atlantic Ocean" in lieu of "Sea," has made no alteration in the boun- dary, and that those words "Sea" and "Atlantic Ocean," respectively used in the Proclamation and in the treaty, must he taken as synonymous : and in that case, there is no loncjer room for the objection drawn from the Atlantic Ocean being in another clause of the treaty contradistin- guished from Bay Fundy. Had the report of the commissioners been laid before the King of the Netherlands instead of the two British statements, the award would in- fallibly have been entirely in favor of the American line. The British construction of the term « Highlands," and along with it the whole theory of the commissioners were set aside by the award ; which declares, " that according to the instances alleged, the term * Highlands' applies not only to a hilly or elevated country, but also to laud which, without being hilly, divides waters flowing in difTerent direc- tions ; and that thus the character more or less hilly and elevated country through which are drawn the two lines respectively claimed, at the north, and at the south of the River St. John, cannot form the basis of a choice between them." And I am confident that such also will be the opinion of every man who entertains correct notions of Physical Geography. In the same manner, not a foot of the line claimed by Great Britain was confirmed by the award ; and the whole of it was repudiated by the declaration " that the verb ' to divide ' appears to require the contiguity of the objects to be 'divided.'" It is manifest that the doubts in his mind, which Induced the King to propose what appeared to him an equitable division of the disputed terri- tory, arose from the use of the term " Atlantic Ocean " in the clause of the treaty that relates to the division of rivers, combined with the dis- tinction made in another clause between that Ocean and Bay Fundy, &c. ; and which he expressed by saying, that " it would bo hazardous to include the Rivers St. John and Ristigouche in the class of rivers mil. ing into the Atlantic Ocean." That objection is removed, whenever the identity between the boun- daries respectively established by the Proclamation and the treaty is ad- mitted, ^o such identity had been admitted in the British statements ; and the award declares that "the ancient delimitation of the British Provinces does not aflford the basis of a decision." But if, as tho United States contend and the commissioners affirm, the identity had been acknowledged by both parties, and the objection respecting the in- 14* 111 i. I fi' 'A i ilr "^--^^"^■■^ 102 Report of Mea$ri, terpretation of the terms of the treaty had been thus removed, the de« cision would necessarily have been in favor of the American line. For had no doubt existed respecting the terms of the treaty, the King, who is an accomplidhed publicist, would not have resorted to the presumed improbability that Great }3ritain could have agreed to the boundary claimed by the United States, or to any other presumed ititentiovs of the parties, in order <'to interpret what had no need of interpretation." The authors of the statements understood the British case better than the late commissioners. There is a passage in these observations which is not perhaps nuffi- ciently explicit. The British coniini8sioners affirm, " that the height of land described by Evans and Pownall in 1756, extended to the east- ern branches of the Penobscot," and " that the description of the south- ern boundary of the Province of Quebec, and in the Royal Proclamation of 1763, was derived from the information published by Evans, the Highlands there spoken of being identical with the height oj land laid down in Evans' map." 'I hey clearly quote Evans' map of 1765, without having seen it ; though they might have found a reprint of it in JefTery's Atlas, No. 18. It is entitled "a map of the middle British Colonies in America, viz : Virginia. Maryland, Delaware, Pennsylvania, New Jersey, New-York, CoiMiecticut and Rhode Island." It does not embrace a single foot of the hei;;ht of land in qu<;stion, and does not approach it. The Connec- ticut River is not delineated on it farther north than a few miles north of the 43d degree of latitude, or about 140 miles south of the sources of that river. All north of that latitude (43o 10') and east of the Hudson and of Lake Champlain is a blank on that map ; and the name, " height of land" is no where used in it. But the commissioners had before them Pownall's Map first published in 1776, and they might have read its title, in which New England and the bordering parts of Canada are expressly stated to be an ad- dition to Evans' Map. That portion of Pownall's Map, added by him to that of Evans, is that which embraces the height of land in question, viz : from the sources of Connecticut to those of the Chandiere ; and a copy of that portion is annexed to this essay. It is sufficiently clear that the description of the boundary in the Proclamation of 1763 could be derived, neither from the previous map of Evans which did not em- brace that portion of the.country, nor from Pownall's Map or topographi- cal essay, which were both published fjr the first time in 1776, thirteen years after the Proclamation. As, if to reach the climax of inconsisten- cy, it had been stated in the report, (page 9) that the former British and American agents had^" both placed the question at issue upon grounds dansrrous to their respective claims;" because it was not known to them \ Fealherstonhaugh and Mudge. 163 ♦» "that a ranp;e of Highlands correspondiDg with the terms of the treaty existed in a part of the territory which neither of the parties had exam> ined, namely, south of the St. John, and lying in that oblique direction between the sources of the Chaudiere and the Day of Chaleurs. }low far, that discovery duo exclusively to the commissioners, may be said to have been unknown to the former British agents, will appear by the red boundary delineated on map A, and by the map reduced from the sketch of Messrs. Odell and Campbell. But I cannot see how the commis- sioners reconcile that assertion of the total iguorance, before they dis- covered it, of the said range of Highlands, either with the early know- ledge of the Indian route from the St. Croix to Quebec, mentioned by Sir William Temple in 166U, and evidently referring to the height of land (pages 21, 22) or with their attempt to show that those Highlands which they have discovered are the same which were described by Pow- nall, in the Proclamation of 1763, and in the treaty of 1783. It will be seen that Pownall's Map does not extend to the sources of the Penobscot, and does not embrace any portion of the two conflicting lines ; and it appears from his topographical essay, that he had no per- sonal knowledge or information respecting the nature of the ground along which either of those lines does run. When, therefore, he designates by the name of " height of land " the ground in which the Kennebec, the Penobscot, and the St. Croix have their sources, it is because, with- out knowing i'vi nature, he knew that that ground divided or separated those sources from those of the St. John, and because the term « height of land," (as well as the synonymous term « dividing highlands") means nothing else than the ground, without regard to its character or elevation, in which rivers flowing in different directions have their sources, and which thus divides those rivers from each other. No. IV. Extracts from the Report of Messrs. Featherstonhaugh and Mudge. Charter of Massachusetts, 1691. By this document the territorial rights of the old charter granted in 1606 to the New Plymouth Company, which had been forfeited were restored, and other territories annexed, as follows : « The Colony of Massachusetts' Bay and Colony of New Plymouth, the Province of Maine, the territory called Acadia, or Nova Scotia, and 164 Extracts from Report of Meatrs. W. ti- : A ■ all that tract ofland lying between the said territories of Nova Scotia and the said Province of Maine." The tract of land here spoken of, and which had been called Saga* dahoc, had been granted on the 12th of March, 1664, by Charles the Second to his brother, the Duke of York, and in that grant it is thusde> scribed : — "Beginning at a certain place called or known by the name of St. Croix, next adjoining to New Scotland in America, and from thence extending along the sea-coast unto a certain place called Petuaguine or Pemaquid, and so up the river thereof to the farthest head of same as it tendeth northwards, and extending from thence to the River Kinebe- qui, and so upwards by the shortest course to the River Canada north- ward." The charter of 1691 also contained the following reservation : — " Provided always that the said lands, islands, or any premises by the said letters patent, intended or meant to be granted, were not then ac- tually possessed or inhabited by any other Christian Prince or State." (page 14.) But the royal charter of 1691, even if it had not been annulled in re- lation to Sagadahoc, by the treaty of Ryswick, furnishes no ground for a claim on the part of Massachusetts to go to the St. Lawrence ; the words of the charter are simply : — "Those lands and hereditaments lying and extending between the said ' country or territory of Nova Scotia and the said river of Sagada- hoc' The furthest point, therefore, to which this north-tvestern corner of Sagadahoc can be claimed, is ihe source of the river, which being the Kennebec River, is the point passed by the Highlands of the treaty of 1783, in north latitude 46'=, or nearly so. This charter, then, gives no title beyond the head of that river." (page 17.) By the charter of 1691, Massachusetts was forbid to issue grants in the Sagadahoc territory, it declared them " not to be of any force, validity or effect, until we, our heirs, and successors, shall have signified our or their approbation of the same." (page 18.) No act of the 1 iitish Government in relation to the annexation of the Sagadahoc territory to the Colony of Massachusetts' Bay, gave that colony a title to any part of it beyond the description contained in the charter of William and Mary (1691), viz : " all those lands andheredita- ments lying and extending between the said country or territory of Nova Scotia, and ihe said river of Sagadahoc ;" which being construed as far as the sources of the Kennebec River, coincides with the most southerly source of the River Chandiere. (page 18.) he a- of )St Feather stonhaugh and Miidgt. Grant of Nova Scotia to Sir W. Alexander, 1621. 165 That grant is described in the following terms : << Oinues et singulas terras Contiuentis, ac insulas situatas et jacentes in America intra caput sen promontoriiira commnniter Capde Sable ap- pellat. Jacen. prope latitudinem qtiadraginta trium graduum aut eo circa ab equinoctiali linea versus Septentrionem, a quo promontorio versus littus maris tenden ad occidentem ad stationem Sanotse Marise naviura vulgo Sanctinareis Bay. Et deinceps, versus Septentrionem per direc- tam iineam introitum sive ostium magnsB illius stationis navium trajicien. qu£B excurrit in terre orientalem plagam inter regiones Suriquorum et Etcheminorum vulgo Suriqtiois et Etchemines ad tluvium vulgo nomine SanctaB Crucis appellat. Et ad scaturiginem remoti.-si nam sive fontem ex occidentali parte ejusdem qui se primum prudicto fluvio immiscet. Unde per imaginariam directam Linearn quae pergere per terram seu currere versus Septentrionem concipietur ad proximam navium Statio- nem, fluvium vel Scaturiginem in magno fluvio de Canada sese exone- rantem. Et ab eo pergendo versus orientem per maris oris littorales ejusdem fluvii de Canada ad fluvium stationem navium portuni aut littus communiter nomine de Gathepe vel Gaspe notum et appellatum." Of this passage, we submit the following literal translation : — " All and each of the lands of the continent, and the islands situated and lying in America within the headland or promontory, commonly called Cape Sable, lying near the forty-third degree of latitude from the equinoctial line or thereabouts. From which promontory stretching westwardly, towards the north, by the sea shore, to the naval station of St. Mary, commonly called St. Mary's Bay. From thence, passing to- wards the north by a straight line, the entrance or mouth of that great navai station which penetrates the interior of tll^ eastern shore betwixt the countries of the Souriquois and the Etchemins, to the river, com- monly called the Sf. Croix. And to the most remote source or spring of the same on the western side, which first mingles itself with the afore- said river. From whence, by an imaginary straight line, which may be supposed (concipietur) to advance into the country, or to run towards the north, to the nearest naval station, river, or spring, discharging it- self into tho great River of Canada. And from thence advancing to- wards the East by tho gulf shores of the said River of Canada, to the river, naval station, fort, or shore, commonly known or called by the name of Gathepo or Gaspe." . The direction to follow the St. Croix to its westernmost sources is consistent with the very precise knowledge we now possess of the branches of that river. On the other hand, this direction to go to the westernmost sources of the St. Croix would appear to bo without an Qb< i 166 Extracts from Report of Messi'S. M I s ject, unless it were to get into the adjacent waters of the Penobscot ; and is it reasonable to suppose that the expression, " versus Septentrionem ad proximmn navium Stationem fluvium vel scaturiginem in magna fltivio de Canada sese exonerantem,'^ could mean that the line to the St. Law- rence from the sources of the St. Croix should be a due north line ; at a time when no information existed of the interior of the country to be traversed by a due north line ; and when it was not known whether there was a river or a naval station at the termination of that line ; there be- ing in point of fact, neither the one nor the other? Compelled, there- fore, to believe that a line drawn due north from the sources of the St. Croix River is not in accordance with the description contained in the grant, we proceed to a more critical examination of the language of the grant. The boundary line is first directed, as will be seen by reference to the map, to proceed from Cape Sable to St. Mary's Bay by a course to. wards the north (versus Septentrionem.) Now this course is laid down in the oldest maps, and is rightly so laid down in them, nearly north- west ; verstis Septentrionem therefore here is equivalent' to north-west. This is a fair deduction from the general description of the course, which is ; " versus Septentrionem a quo ''promontorio versus littvs marit tenden ad occidentem,'" stretching west wardly towards the north, the term for which is north-west. That " versus Septentrionem^^ is to be gram- matically construed in connection with " tenden" is evident, since the course is not said to be east or west of north ; whilst if it were to be construed in connection with"af) equinoetiali Linea," it would only ■erve to explain what could never be doubted, viz., that Nova Scotia was situated north and not south of the Equator. From St. Mary's Bay, the course is, in like manner, directed to run «' versus Septentrionem" or north-west, across the entrance of the Bay of Fundy to the River St. Croix. And this is the true course as ex- hibited by the map. But the next part of the course is not directed to be versus Septentri- onem. but simply directs the St. Croix to be followed, tracing its course uj.' the first stream which flows into it from its western bank, and up to « i;.s most remote source or spring." And by referring to the map, it will be seen, that nothing but a loeal knowledge, surprisingly exact for the times, could have suggested a description so consistent with the hydrography of the country. Having reached the most remote spring where the Land Portage be- gins, we find the old course, versus Septentrionem, or north-west, again enjoined, and directed to be followed by a straight line drawn in that direct,! e- lin hat self sast branches of the Chandiere, which are in the 46th parallel of north lati- tude, and on the ancient confines of Acadia. This, however, was a war grant, extending, as grants of that character sometimes did, to the St. Lawrence, to wit, to the nearest naval station in the Great River of Canada. Now Quebec, nearly opposite to which place the Chandiere empties itself, is a naval station, and there is none other on the river, or even on the Gulf of St. Lawrence, for a distance of about 375 miles east- ward, till we come to the Bay of Gaspe, which is spoken of in the grant as the next naval station. The evident intention therefore of the grant was, not to limit it by a due north line from the sources of the St. Croix, but a north-west line running from the westernmost waters of the St» Croix to a point in the St. Lawrence, opposite to Quebec. It cannot be denied that this interpretation of the language of the grant is consis- tent with a singularly exact knowledge, for the time, of the relative situa-' tions of the mouth of the St. Croix River, and of the head waters of the Chandiere ; and that any other interpretation is inconsistent with any knowledge whatever of the interior of the country. We consider also that this construction of the grant of Nova Scotia derives great weight from its being supported by ancient maps still ex- tant. It would be deemed reasonable if it stood only upon its own merits ; but confirmed as it is by Coronelli's map, dated 16S9, of which the extract on map 6, No. 3, has been already alluded to in a i ote at p. 12, we h^v; ; tuceiveu ourselves in duty bound to submit these ob- servations with the collateral evidence to your Lordship. At the period wher this map was published, the nature of the boundary of the Grant of 1621 must have been well understood, and if the western boundary of that Graot had then been considered to je a north line, from the head of the St. Croix, crossing the St. John and reaching to the St. Lawrence, it would have been so laid down on some of the maps, which we do not find it to be. On the contrary, the maps of that period, as we see by the instance quoted from Coronelli, carry a boundary line from the head of the St. Croiv, in a north-westerly and westerly direction, to the head waters of the Chandiere, always ^outh of the River St. John, and its progress westward, separating the head water of the Penobscot and Ken- nebec from the head waters of the Chandiere. The original map from which we have copied the extract No. -i, has an engraved dotted line running trora the St. Croix to the Chandiere, the south side of which is edged with a red colour for the British Colonies, and the north side with a blue colour tor the French tolouit-s. At what period the mistake oc- curred which led to the erroue )U3 construction found in so many maps, the effect of which is to carrv a due north line from the sources of the 1€8 Extracts from Report of Messrs. ft '' li St. Croix to the St. Lawrence, we know not ; but it appears to have been subsequent to the year 1689. This most erroneous protraction of Mitchel's map ied us to examine and thoroughly to investigate the discussions connected with the origi- nal grant of Nova Scotia in 1621, and we so discovered, that all the reasonings advaucedi n the discussions upon the boundary described in the grant, were founded upon a translation of that grant furnished by the American documents, and that this translation had omitted to give the proper sense of that particular portion of it which governs the true constraction of the boundary it describes, viz : " Jld proximam naviiim staiioih'.m" a point of the utmost significance ; for it may be that one reason for using the term ^'proximam" was to distinguish Quebec from Gaspe, which, as it respected the former, was to be considered as tilti- mam. And if this word "proxti/iam" was significantly inserted in the original Latin, it seems to have been as significantly overlooked in the American translation. That translation is as follows : — « All and singular the lands upon the Continent, and the islands, situate lying and being in America, within the head or promontory com- inonly called Cape Sable, in the latitude of forty three degrees nearly or thereabouts, from that promontory along the shore stretching to the west to the Bay commonly called St. Mary's Bay, thence to the north by a direct line crossing the entrance or mouth of the great Bay, which ex- tends eastward between'the countries of the Siriquois and Etchemins, so commonly called, to the river ct ^monly called by the name of the Holy Cross, or the St. Croix, and to th . nrtherest source or spring upon the western branch of the same, which first mingles its waters with those of the said river, thence by an imaginary direct line, to be drawn or run through the country, or over the land to the north to thejirsl bay, river, or spring, emptying itself into the great river of Canada, and from thence running to the east, along the shores of the said river of Canada, to the river, bay, or harbour commonly called and known by the name of Gachepe or Gaspee." It is to be observed of this translation, that all its inaccuracies are in perfect harmony as respects the results they produce, which are to turn away the attention of those who confide in it, from a literal in- terpretation of some very significant passages in the original Latin document ; and the practical effect is to obscure the description of the boundary, in such a manner as greatly to prejudice the British claim. In the first place we find in this translation, " rersus iSejje time within the knowledge of the t mers of it, and if ih.; foregoing observations upon the first descriptiv of this par? of the boundar' be, as they are presumed to be correct, these words, descriptive of the eastern boundary, must, of necessity, be interpreted in a corresponding sense." " The Highlands thus intersected by the due north line, lie in lUe general course and direction of a line drawn t'\ ,>m the north-westernmost head of Connecticut River, along the well known and very elevated and conspicuous height of land forming the ackuow' dgc mid no: .rious landmark and boundary between the two nations, in that quarter which divides the Rivers Chandiere and d'l Loup, emptying themselves into the River St. Lawrence, from the 'ivci ^ Penobscot and Kennebec, falling into the Atlantic Ocean. Thi'i v t-II known height of land being the only highland which actually diviJ>- f lie rivers contemplated in the treaty to be divided by the boundary line therein described, as the undersigned agent has heretofore, in the course of these discussions, abundantly shown ; and this well known height of land being moreover found to ' \ ■; t> # 0..»^^^^^ IMAGE EVALUATION TEST TARGET (MT-3) // ^/ .^^^. 1.0 I.I 1.25 !f liM IIM '- ^^ III 21 IS 2.0 1.8 U il.6 PholDgi*aphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4is €f, V C<'x f> 176 The Bntish Agent extend north-easterly in e direction towards Mars Hill, in adisanciand unbroken ridge, for many miles, and to be afterwards connected with Mars Hill by a successioD of mountains and broken ridges of High- lands, intersected with ponds 8;id streams, appearing to the eye, when viewed from various stations., to be an elevated and unbroken ridge, as the result of the surveys fully prove. No other point in this due north line, in any part of its extent, combines these various circumstan- ces, exclusively of the other and fatal objections to adopting any point in this line, north of the River St. John, as the north-west angle of Nova Scotia. It seems, therefore, from these considerations, to result in demonstration, that the point where the said due north line strikes the Highlands at Mars Hill is the north-west angle of Nova Scotia truly intended in the treaty of peace of 1783. <' The true intention of the treaty, then, under all the acknowledged facts in this case, would clearly be ascertained by the following obvious- ly plain and natural and nearly literal construction of its phraseology, namely : It is hereby agreed and declared that the following are and shall be, the boundaries of the United States, viz : from the north-west angle of Nova Scotia, viz : that angle which is formed by a line drawn due north from the source of the St. Croix River to the line of the high- lands, along the said line and the highlands which divide," &c. "The force of this reasoning will be rendered more apparent if the boundaries of the United Stales, described in the treaty, be traced from west to east, instead of from east to west, as they are traced in the treaty, merely for the purpose of a more convenient description of them ; for, it will not be contended that the quarter in which one may commence the actual tracing of a boundary, previously agreed upon, can make any difference in the boundary itself. Let then the tracing of the bounda- ry, in this quarter, be made <' from the north-westernmost head of Con- necticut River 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 north-west angle of Nova Scotia, viz: that angle which is formed by a line drawn due north from the source of St. Croix River to the Highlands." «In this case the only difference is, that the second line forming the angle is placed first in order in the description — there is no diflerenco in the line itself. But it is the course or inclination of this line which is from the north-west angle of Nova Scotia, at the point of its intersec- tion with the due north line, drawn from the source of the St. Croix. «' He, therefore, determined carefully to abstain from any reference whatever to any documents, maps, or plans, respecting the ancient or former boundaries of the Province of Nova Scotia, or to any of the pro- ceedings before the commissioners under the 5lh article of the treaty of Under the Ghent Commission. 1T7 tor. on- ipty the igle roix 1794, or of those under the 4th article of the present treaty, although he had them all in his possession, because he evidently perceived that the merits of the business submitted to the consideration of this honorable Board, though they might have been incidentally alluded to, had never come directly unr^'sr discussion on either of those former occasions; and, consequently, that any of the obiter dicta of the commissioners or agents of either government, in matters not in judgment before them, nor submitted in any manner to their investigation, could not any more than the obiter dicta of judges or council in any judicial proceeding, alio intuitoVi in the courts of law, be cited as authorities in a case in which the merits of those occasional illustrations should become the direct ob. ject for investigation or decision ; and it would obviously be most un. reasonable if it were otherwise." "And we here discover the accuracy and propriety of the peculiar phraseology, in the first description of the north-west angle of Nova Scotia, namely, that this angle is not in this description, designated tb be that angle which ;s formed by a line drawn due north from the source of the River St. Croix, to the Highlands which divide those rivers which empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, but merely to the Highlands. The framers of the treaty well knew, that this north line would never intersect any part of those only Highlands contemplated in the treaty ; therefore the second line is described to be along the said Highlands, &c., and is strictly conformable to Mitchell's Map, in this regard. And as it has been ac> cordingly iucontestably established, that the line along the highlands intended by the treaty, should and must be aliue south of the River St. John, it results in demonstration, that the north-wect angle of Nova Scotia, designated in th^j 2d article of the treaty of peace, of 1783, is formed by a protraction of this line from the said highlands easterly, along the highlands, following the sources of the several branches of the rivers, above mentioned, falling into the Atlantic Ocean, and leaving the same within the territories of the United States, until such line, so protracted. shall intersect a line drawn due north from the source of the River St. Croix ; which point of intersection must, therefore, incontro. vertibly be the north-west angle of Nova Scotia, required to be ascer- tained by this honorable Board, and the 6tb article of the treaty of Ghent." sec- of NOTE EXPLANATORY OF MAPS. Mitchell's Map. The due north line is delineated on the original map, and extends to the River St. Lawrence. The residue of the color- ed line has been added on this transcript in order to show the limits of the disputed territory according to it, and that the negotiators of the treaty, bad they so intended it, might with facility have described with precision the boundary claimed by Great Britain. Campbell's sketch of Highlands. He has added Mr. Odell's views from Houlton, which are delineated in his survey of the Restock, a distinct map not inserted here, which is also filed with the proceedings of the Ghent commission. Province of Quebec, Northern Colonies from Military Atlas, and Bowen's Map. About thirty maps published in London subsequent to the Proclama- tion of 1763 were laid on the part of the United States before the King of the Netherlands, eighteen of which published before the treaty of 1783, show, like that of Mitchell, that the situation of the basin of the St. John, of the sources of the Penobscot, and of those of the tribu. tary streams of the River St. Lawrence were known to the negotiators of the treaty. And all those, on which the southern boundaries of Lower Canada were laid down, either in conformity with the Proclamation of 1763, or with the treaty of 1783, place that boundary as well as the north- west angle of Nova Scotia on the highlands claimed by the United States. Those published before the treaty differ as to the western boun- dary of Nova Scotia, which was determined only by the commissions of the governovs of that province ; and these had not been made public. The three maps given here were amongst those produced by the United States, and are a fair specimen of all : they have not been se- lected, but are those to which access could be had at this moment. Bowen, favoring the claim of the Crown against Massachusetts' Bay, has made the Penobscot the boundary between Nova Scotia and Mas- sachusetts. In the map of the Province of Quebec the line from the source of the St. Croix to the highlands is not a straight line. In the JVbie Encplanatory of Maps. 170 sions kblic. the sc- lent. Jay, [as- the the map from the Military Atlas (as well as in that of Powna'.l) that line ia drawn from a small stream (called Cobscook) that falls in the western extremity of the Bay of Passamaquoddy. The reason for this is that, in the year 1765, the Governor of Nova Scotia, under pretence that this was the St. Croix, granted 100,U00 acres of land to Governor Ber- nard, Fuwnall and others, west of the Scoodiac and extending to th&t pretended St. Croix ; and Pownall placed the boundary on his map ac- cordingly. Of the three maps, two place the boundary between Nova Scotia and Canada, east of the north-west angle of Nova Scotia, south of, or on the Ristigouche ; and one places it north of that river. Simi- lar irregularities are found on other maps. But they all agree, as above stated, in the general features of the country, and in placing the south- ern boundary of Canada and the north-west angle of Nova Scotia on the highlands claimed by the United States. The map of Messrs. Featherstonhaugh and Mudge exhibits that *' axis of maximum elevation of the whole country" which, in the report (page 40) they present "as the true highlands intended by the 2d article of the treaty of 1783, uniting to the character of highlandi as contradistinguished from lowlands, the condition required by the treaty, of dividing the riv- ers that empty themselves into the River St. Lawrence from those which flow into the Atlantic Ocean, to the north'Westetnmosthead of the Con- necticut River." How far those true highlands fulfil the cocdition of dividing the rivers thus designated, the map shows. But, as to the axis aforesaid, it appears that a group of mountains, some peaks of which have an elevation exceeding 2000 feet, is found v/here the Tobique, which falls into the St. John, and some branches of the Ristigouche and of the Nipisiquit, both of which fall into the Bay of Chaleurs, have their sources ; and that, in a south-westwardly direction and about 160 miles distant, another group of about the same elevation is found near the most southerly sources of the St. John and the opposite sources of the Penobscot. Those two groups are, in that direction, the two ex- tremities of the basin of the St. John. The ground in both places falls rather abruptly near 1000 feet, and thence descends on both sides gradu- ally, as it necessarily must, to the bed of the St. John about 120 feet above tide water. To an ignorant man, the whole line appears to be an inverted arch or irregular curve, of which the St. John is the lowest and the two groups of mountains, or extremities, the highest points : and the axis of that curve, or imaginary straight line, drawn from one of the extremities to the other, is in the clouds. ERRATA. Page Line 33, 37, for their 67, 1, "is 76, 25, " accompany this 109, 6, " to 132, 25, « were 137, 2, « definitely, 139, 36, « Grant, 146, 34, « is simply, 148, 19, « proceeding, 150, 15, 'f they, 165, 37, « fort, read this. " it is. '* were annexed to the first American. " for. " was. " definitively. " Grant, or. «' is. " proceedings. " the Commissioners. « port. 1 1 fw I Eeduced tVom/the of&cuillin^A ^ JBTTJUe SiTATEia and ORR^ BHTTAql ■4p "^'^^ / /V A 31 AP . IRediiced from/flie officisHTapA , JSTTJUS vi£ft Ihi'if'eal^ of peace of /Vd^J.^'mbtacm^f also l/tc adjacait parts oj dvmuiions vfl/ie two Powers. ,^. .\oriff mestan£fl€ ofJlhvaSfcotia. as eonlended^forbif ffuU^UtUs £.. , . ., . . (rrmlBrUaitt^ (t.Mrfh wtslern must head of (inrieeticutJimr, as contended for b^Grj JJ , „ „ biftheas. Tfu If run coliur Mwttt th/Scundari/ Zint as r/aimed hi^ f/u T^.S'. . j,n Th4- rfd C4}lci(r dcfU>Us (h^ Boundary Line aw cJa4fft(c/ f>tf ii. Ji '^'^^^p; UJe. tfu undersigned do her (61/ certifif this 10 Ife the JffafiJi\ vvhich by Ou -# ^^^rl/^U of the conrenlion concludeMi titis dojf Mwee/t^ I dU F.J^lates ast^l Great BrUaitt has been agreed on bif the coiilai - m,; I ding partus, and w/tich ice lutve accordingly signed, this ^9 ^^day "^-^ I oj i^cptembsr /tfZ 7. _ Albert dallati/v Chas (xrant j^^^i IJ. 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