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THE RIGHT
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OF THE
816.02
UNITED STATES OF AMERICA
TO THE
NORTH-EASTERN BOUNDARY
CLAIMED BY THEM.
PRINCIPALLY EXTRACTED FROM THE STATEMENTS LAID
BEFORE THE KING OF THE NETHERLANDS,
AND REVISED BY
ALBERT GALLATIN,
WITH
AN APPENDIX AND EIGHT MAPS.
N E W Y 0 Ꭱ Ꮶ :
SAMUEL ADAMS, PRINTER.
1840.
TABLE OF CONTENTS.
Page
v
13
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-
.
61
72
105
107
of St. Lawrence, .
Intention of the Parties,
§ 5. Negotiations of 1782,
§ 6. Former Boundaries,
.
§ 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.,
No. III. Observations on the Report of Messrs. Featherston-
haugh and Mudge
66
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.
127
136
165
178
CONTENTS.
3. Reduced from the Map annexed to the Report of Messrs.
Featherston haugh and Mudge, 1840.
Sketch of the Highlands claimed by Great Britain by
4. Part of Governor Pownall's Map, London, 1776.
66 Em. Bowen's Map, London, 1775. .
6. Map of Province of Quebec, London, 1776. .
66 Map of Northern British Colonies in America,
from American Military Atlas, London, 1776.
PREFACE.
The British Government appointed Commissioners, in the year 1839,
for the pnrpose of surveying, Ist, 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 cxtremity 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. But 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 correct 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 are in plain
accordance with the 2d Article of the Treaty of 1783, and with the phy,
sical geography of the country; and that the line which is claimed on the
PREFACE.
part of the United States, (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-
ernmost head of Connecticut River, and therefore has no pretension to be
put forward as the line intended by the Treaty of 1783.
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 does 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 but 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
conterrplated, 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 that the knowledge which the
negotiators had of that topography was amply sufficient to enable them
to describe without difficulty, 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 they 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 does not disprove the assertion, on the part of the United
(a) It is well known, that the line, from the source of the Connecticut to the
north-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.
PREFACE.
. vii
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. (6)
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, divested 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 will
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
(6) Those four main questions are respectively discussed in the 2d, 7th, 4th, and 3d
Sections of the following essay.
(c) See Nos. III and IV of the Appendix to 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. 1 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 years ago.
viii
PREFACE.
.
published. It would seem as 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 agitate 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 in 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-
standing its high pretensions, gives but a very imperfect view of the
subject, treats only of subordinate points, does not discuss any of the
great questions at issue, and yet which from the boldness of its conclu-
sions and the sanction under which it has appeared, was calculated to
produce and has made, in England at least, an impression unfavorable
to the rights 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 certainly to be shaken by either the dis-
coveries or the arguments of the Report.
Having been, jointly with 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 more 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 inost 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 may fall, inay be induced to investigate the subject and to judge for
themselves. But if the claim of the United States is, according to our
convictions, founded in strict justice, it is to the British Cabinet itself,
PREFACE.
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 in 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 iinportant 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 quote the instance of an intelli-
gent and enlightened Secretary of State of the United States, much less
burthened with official 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 the 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 was always an earnest desire to remove subjects of con-
tention, and to promote friendly relations; on almost all questions a con-
ciliatory disposition; nothing at any time, that could shake my coufi-
dence in the sincerity and good faith of that government. And I do
believe that it would do justice, if it was once satisfied 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 me al-
most impossible that, in a case in which, as I believe, there is no British
result of an attentive ministerial inquiry after 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, the question must be settled.
It would be the height 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 asserted 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 without its use in promoting a satisfactory settlement of the ques-
tion.
INTRODUCTION,
The 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 Sth of November, 1603, Henry 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 at 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 land between the territories of the Souri-
quois and of the Etchemins, (Bay of Fundy,) to the river commonly
called St. Croix, and to the most 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 the 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 Baccaleos or Cape Breton,
leaving these islands on the right and the Gulf of the said river de Cana-
da or of the great 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 Sable aforesaid, where the per-
ambulation began, . . . . . . . all which lands aforesaid,
(a) This translation, from the original Latin, is the same which was inserted in
the first American statement laid before the King of the Netherlands.
INTRODUCTION.
shall at all times hereafter be called and known by the name of Nova
Scotia, or New Scotland, in America.” (b)
[The western boundary thereby assigned to Nova Scotia differs from
the eastern boundary of the United States, as described by the treaty of
peace of 1783, in the following particulars.
Ist. 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 mouth 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 charter, to run towards 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, &c.]
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 Sagadahock, (the River 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 Il. 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
so 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
so 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 31st 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 II. a subsequent confirmation of his grant, bearing date the 29th
of June, 1674. The territory was afterwards governed under the authori-
ty of the Duke of York, and, at his accession to the throne, merged in
the crown.
,(6) This grant was confirmed by a subsequent Charter of Charles I. dated 12th of
July, 1625.
INTRODUCTION.
... 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,
hy William and Mary, annexed to the then Colony of Massachusetts'
Bay, as will appear by the following extracts of the said Charter.
6 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, the
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 . . . . . . . by
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 that part of New England, in America, ....
and all the lands and hereditaments whatsoever, lying within, (here the
limits of Massachusetts 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 lands lying within the bounds of
the colonies formerly called the Colonies of the Massachusetts Bay, and
New Plymouth 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 colonies, wheresoever situated, which the French did possess before
INTRODUCTION.
the declaration of war." Acadia, or Nova Scotia, being clearly embra
.ced by those expressions, and being thus severed from 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 36th October, 1700, 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."7
France having, by the 12th article of the treaty of Utrecht, of 1713,
ceded to Great Britain - All Nova Scotia or Acadie, with 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 case, 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
(according to the law of Nations) only a suspension of the property of
the former owners, and not an extinguishment of it: and that upon the
reconquest of it, by General Nicholsoil, all the ancient rights, both of
the Province and of private persons, subjects of the crown of Great
Britain, did revive and were restored jure postliminii. Whence they
conclude that the said charter still remains in force, and 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, ac-
INTRODUCTION.
5
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 coll-
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, 1765, been definitively ceded by her to Great Britain, His Britan-
nic Majesty issued a proclamation establishing new Governments, and,
amongst others, that of Quebec. 1
The boundaries of that Government were, by the said proclamation,
fixed as follows. “Bouuded 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 Nipissing,
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. III. Chap. 33. (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. . .
.. be, 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 the said Royal Proclamation, of the 7th of October, 1763."
- Provided always, that nothing herein contained, relative to the
boundary of the Province of Quebec, shall, in any wise, affect 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 30th October, 1700, of
; (c) Not the river of the same name which falls into the Bay of Fundy, but the
smaller stream which, from the north, falls into the mouth of the river St. Lawrence,
1*
INTRODUCTION.
the extent of the cession made by the treaty of Ryswick; and notwith-
standing the opinion of the law officers of the Crown, of August 11th,
country tying 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 Trade, in a letter
" 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 allegation that the lands 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, 1763, 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, 66 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 act empowering their agent to
cede to the Crown all pretence of right or title they may claim under
their Charter, to the lands on the River St. Lawrence, destined by the
Royal Proclamation to form part of the Government of Quebec, the
Crown will then 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
(d). The words here quoted, are, however, omitted in all the subsequent Commis.
sions, including that of John Parr, (dated 29th July, 1782, who was Governor at
the date of the treaty of 1783.) The Boundaries prescribed are the same in all the
Commissions,
of the Province of Quebec: reserving only to itself the right of appro.
bation, as before.”
Mr. Mauduit urges an acquiescence with that proposal, principally on
the grouud, that the narrow tract of land which lay beyond the sources
of all the Rivers of Massachusetts, and was watered by those which run
into the River St. Lawrence, could not be an object of any great conse-
quence to Massachusetts; though it was absolutely necessary to the
Crown, to preserve the continuity of the Government of Quebec.]
In the course of the negotiations which terminated in the treaty of
peace of 1783 between the United States and Great Britain, provision-
al articles were agreed between the plenipotentiaries, subject to the con-
sideration of his Britannic Majesty, but which were rejected. Amongst
these, was the following in relation to boundaries, viz :
66 The said 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, to the north-westernmost head of Connec-
ticut River ; thence down along the middle of that river to the forty-fifth
degree of north latitude, and thence due west in the latitude forty-five
degrees north from the Equator, to the north-westernmost side of the
River St. Lawrence, or Cataraguy; thence straight to the Lake Nipis-
sing, and thence straight to the source of the River Mississippi ; west,
by a line to be drawn along the iniddle of the River Mississippi, to
where the said line shall intersect the thirty-first degree of north lati-
tude; south, by a line to be drawn due east from the termination of the
line last mentioned, in the latitude of thirty-one degrees north of the
Equator, to the iniddle of the River 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; thence down along the
middle of St. Mary's River to the Atlantic Ocean ; and east, by a line
to be drawn along the middle of St. John's River from its source
to its mouth in the Bay of Fundy; comprehending all islands within
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."
Paris, 8th October, 1782.
A true copy of which has been agreed on between the American
Commissioners and mė, to be submitted to His Majesty's consideration.
(Signed)
R. QSWALD.
Alteration to be made in the treaty, respecting the boundaries of
Nova Scotia, viz:
6 East, the true line between which and the United States shall be set-
tled by Commissioners, as soon as conveniently may be after the war."
The preliminary articles of peace, finally agreed on, 30th November,
1782, as made public at the time, are the same with those of the defini-
tive treaty of 1783. But, to those preliminary articles of 1782, the fol-
lowing secret article, bearing the same date, was added. It was omitted
INTRODUCTION.
in the definitive treaty of 1783, Florida having in the mean while been
ceded to Spain by Great Britain.
" It is hereby understood and agreed that in case Great Britain, at
the conclusion of the present war, shall recover or be put in possession
of West Florida, the line of north boundary between the said Province
and the United States shall be a line drawn from the mouth of the River
Yassous, where it unites with the Mississippi, due east to the River Apa.
lachicola.”
The preamble of the treaty of peace, concluded the 3d day of Sep-
tember, 1783, between the United States and his Britannic Majesty, ex-
presses the mutual wish, to establish such a beneficial and satisfactory
intercourse between the two countries, upon the ground of reciprocal ad-
vantages and mutual convenience, as may promote and secure to both
perpetual peace and harmony. And the boundaries of the United
States are defined in the following words, viz:
6 ARTICLE 1. His Britannic Majesty acknowledges the said United
States, viz: New Hampshire, Massachusetts Bay, Rhode Island and
Providence plantations, Connecticut, New-York, New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, North Carolina, South Carolina,
and Georgia, to be free, sovereign, and independent states ; that he
treats with them as such, and for himself, his heirs and successors, re.
linquishes all claims to the government, property, and territorial rights of
the same, and every part thereof.
“ARTICLE 2. And that all disputes which might arise in future on the
subject of the boundaries of the said United States may be prevented, it
is hereby agreed and declared, that 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 porth-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 its mouth in the Bay of Fundy, to its
source; and, froin 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 the 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 islands as now are, or heretofore have been,
within the limits of the said Province of Nova Scotia.”
Doubts having arisen what river was truly intended under the name
of the River 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 artic
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
66 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 Decemher,
1914, it was agreed to provide for a final adjustment of the boundaries.
described in ihe treaty of 1783, which had not yet been ascertained and
determined, embracing certain islands in the Day 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 ;
.6 Whereas 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. ...
10
INTRODUCTION.
........ The said Commissioners shall have power to as.
certain and determine the points above-mentioned, in conformity with
the provisions of the said treaty of peace of 1783, and shall cause the
boundary aforesaid, from the source of the River 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
north-western most head of Connecticut River, and of such other points
of the said boundary as they may deem proper. And both parties agree
to consider such 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 differing, 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 reports 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 difference 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 29th 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 office 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 Chargé d'Affaires at Wash-
ington, and by Great Britain to the Minister or Chargé 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 Party, 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 months 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 Convention, 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, surveys, 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 have 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-
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, ina
:
INTRODUCTION.
12
tended to be thus annexed, by either Party, to the respective statements,
shall be communicated to the other Party, in the same manner as afore-
said, within nine months after 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 make thereto, and
shall annex to his first statement, either in the margin of such transcript
map or maps, or otherwise.
Where map A and Mitchell's map differ one from the other, they must
. of course, be considered as evidence mutually acknowledged ; the map
A, of the actual topography of the country, and Mitchell's map, of the
topography as it was understood by the framers of the treaty of 1783..
The said map A, was prepared at London, in the year 1827, under
the superintendence of the British and American plenipotentiaries, by
the late Mr. Tiarks, the astronomer employed on the part of Great
Britain 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, in 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. Croix,
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 75 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 be 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 line is, or must be consi-
dered as the boundary, (terms used by him in reference to the northwest-
ernmost head of the Connecticut River,) but that it will be suilable, 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.
13
Maine entered a solemn protest by their resolutions of 19th January,
1832. And the Senate of the United States did accordingly 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 Netherlands, are those which, in the following
essay, are called the "American" and the 6 British " Statements.
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, hay-
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 1783, 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 Massachusetts, lying
east of the State 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.
§ 1.
American Line.
.
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
14
Terms 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 north-westernmost head of Connec-
ticut River, ...... 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 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 aforesaid 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 said, 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 River 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 common 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 Scotia, as
complete and intelligible 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 the Atlan-
American Line.
15
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 not, the
north-west angle of Nova Scotia, was, 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 Province 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 frorn 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-
certained, 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 line from that source had been surveyed, as far as
the sources of a river emptying itself 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 the rules by which, (and therefore the spot where,) it would be found.
(a) In the commission of Montague Wilmot, dated 21st of November, 1763, the
following proviso is added after the words, to the westward, viz: : although our
said Province 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-
missions.
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 surveyed 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-westernmost 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 6 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 might 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-westernmost head of Con.
necticut River. It is that property, (what, iu French, is called, “ Point
de Partage,'') which constitutes the essence of the treaty definition.
Avoiding accordingly the words, “mountains," ohills,” 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 be 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 sufficient to
entitle it to the designation of “ Highland,” in relation to those rivers
and to that country.
No Highlands can divide the rivers that fall into the Atlantic Ocean
from those which 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
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 distance, 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, after crossing several upper branches of the River
Ristigouche, reaches, at the distance of about 140 miles from the source
of the 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 the 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 two 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 by 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
Terms of the Treaty.
insist, and have uniformly insisted, that spot on the due north line,
(about 140 miles 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-
tinet 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 imposed 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, it is 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, as
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
1
British Line.
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 from the source of St. Croix
River, to the Highlands."
Immediately following the last mentioned words, viz : “ to the High-
lands,” the words (in reference to the boundaries,) are “ along the said
Highlands, which divide those rivers that empty 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 6 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 an-
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
20
Terins of the Treaty.
the plenipotentiaries was agreed on as a delineation of the water courses,
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 live as claimed by her. That such are respectively, according
to the treaty of 1783, 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 1918, when her claim to that 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 April, 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 Goosequick
River, from the River Presque 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 Britain, 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.
21
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 hy the letter C, to a spot called Metjarmette Portage, which di-
vides the source of the north.westernmost 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 several 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, (St. 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,
.
D
22
Terms of the Treaty.
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 conformn 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 to 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.)
British Line.
·
12
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 first 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 which 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 of the highlands, along the said highlands
which divide," &c.
4. Finally the Agent proposes to reverse the description of the boun-
24
Terms 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 a line drawn due north from
the source of St. Croix River to the highlands."
but besides reversing the line, he has omitted the word said, 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 Mars 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 with 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 line 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 within the United States, to Mars Hill.”
And he adds ; “Now what does the word, along, in its ordinary sig.
nification 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, along,
and, continuation, 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 extent, 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
Pritish Line.
25
words, those in most common use for that purpose, are, from, to, 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 from, both from its etymology and uniform use when ap-
plied to place, is that which most precisely designates beginning, and
excludes any possible interval, between the point to which it refers, and
that where the course or direction assigned to the line, does begin. The
word along, as applied to such course or direction, means the whole
length, following the course of, keeping company with, 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,
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 in the treaty, is, that there was, in that respect, a defect
in the public acts of Great Britain, from which the description of the
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 forty-fifth degree of
latitude to the highlands, or from the highlands to the North Coast of the
sions used in the Proclamation do not contradict the description.
The subsequent Act of Parliment of the year 1774, declared the Pro-
vince of Quebec to be bounded on the South, by a line from the Bay of
Chaleurs, along the highlands which divide the rivers (last above men-
tioned,) to a point in forty-five degrees of Northern latitude on the
Eastern bank of the River Connecticut."
This description was not merely vague, but inaccurate. The same
chasm, as in the Proclamation, was left between the extremity of the Bay
of Chaleurs and the dividing highlands; and there was besides another,
between those highlands and the point in forty-five degrees of Northern
26
Terms of the Treaty.
latitude on the Eastern bank of the River Connecticut. The use of the
words from and to was therefore inappropriate.
But the framers of the treaty of 1783, discussing the terms of an in.
ternational compact, with the avowed view that all disputes which might
arise in future on the subject of the boundaries might be prevented,
corrected the defects of the former description, and used no expressions
but such as were strictly applicable to the boundary agreed on, and de.
scribed in the treaty.
The manner in which the line necessary to connect the dividing
highlands with the Bay des Chaleurs ought to have been described, was
foreign to the subject matter of the treaty; since that particular portion
of the southern boundary of the Province of Quebec lay far east of the
territories of the United States, and made no part of their boundary as
agreed on by the treaty.
The point from which, by the Quebec Act, the line along the highlands
was to commence, was not on the highlands; and the word from was
therefore inapplicable. But the framers of the treaty placed, in the most
precise and express terms, the point at which the line along the high-
lands was to commence, that is to say, the north-west angle of Nova
Scotia, on the actual dividing highlands; and to that point, therefore,
the word from was strictly applicable, and the appropriate one to be used
on the occasion. It is only, in case they had not thus expressly placed the
north-west angle of Nova Scotia, or place of beginning, on the dividing
highlands, that it might have been alleged, that the words from, along,
and to, did not imply the necessity of the boundary line being, through
its whole extent, along the highlands which divide the rivers designated
by the treaty.
The care with which, whilst adopting the point in forty-five degrees
north latitude on the bank of the Connecticut River, the framers of the
treaty corrected, in that part of the boundary, the defective description
of the Quebec Act, affords the most conclusive proof of the deliberate
attention which they paid to the subject, and that the words from, along,
and to, were not inadvertently introduced; since, fully aware of their
import, the negotiators altered the description of the boundary, so as to
make it exactly correspond with the true and only appropriate mean-
ing of those words.
The correction consisted in placing the termination of the line which
extends along the highlands, at that point where the boundary must
necessarily leave them, that is to say, at the source of the Connecticut
River ; and in describing as another line, that which from that source
extends “ down along the middle of that river to the forty-fifth degree of
north latitude.”
Another conclusive proof of the meaning of the words from, along,
British Line.
27
and to, as used in this article of the treaty, with reference to the begin-
ning, course, and termination of the boundary, is found in the subse.
quent parts of the same article, in which they are used for the same pur-
pose, and in the same express sense, not less than eight times, viz :
6 To the north-westernmost head of Connecticut River, thence down
along the middle of that river to the forth-fifth degree of north latitude."
“ The River Iroquois, or Cataraquy; thence along the middle of said
river into Lake Ontario.”
“ The communication by water between that lake and Lake Erie;
thence along the middle of said communication into Lake Erie."
« The water communication between that lake and Lake Huron ;
thence along the middle of said water communication into the Lake
Huron.”
- The River Mississippi ; 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.”
“ The River Appalachicola or Catahouche ; thence along the mid-
· dle thereof to its junction with the Flint River.”
“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 its mouth in the Bay of Fundy to its source.”
In this last instance, the words from and along are used ; in the others,
the words are thence and along. The mode of reasoning generally
adopted by the British Agents, under the former Commission, renders it
perhaps necessary to observe, that the word thence, as applied to place,
means from that place, from that point ; and that, therefore, the words
from a certain point, and thence, as applied to a point just before men-
tioned, are synonymous.
It will not be denied that, in every one of the instances which have
been quoted, the boundary line was to extend without chasm or inter-
ruption, from the point of departure, along the defined river or water
communication, to some other specified point or place. Thus, in the
last instance, the line does begin at the mouth of the River St. Croix,
and from that point extends without any interruption, along the middle
of the said river to its source. It is the same in all the other instances.
And, in like manner, the boundary line beginning at the north-west
angle of Nova Scotia, must, according to the treaty, from that point ex.
tend without any interruption, along the highlands which divide the
rivers designated by the treaty, to the north-westernmost head of Con-
necticut River. To deny this would not be less repugnant to common
sense, than if it was asserted that the eastern boundary, instead of keep-
ing, through its whole extent, from the mouth of the River St. Croix, to
28
Terms of the Treaty.
its source, along the middle of that river, might, in conformity with
the treaty, have been a straight line, from the mouth of the river to the
junction of its north and west branches.
Another attempt to reconcile the British assumed line, with the terms
of the treaty, is founded on a glaring perversion of the meaning of the
term “to divide."
The British commissioner had declared it, “to be evident, that the
British line does divide, as directed in and by both those treaties, (that of
1783 and that of Ghent,) the rivers which empty themselves into the
River St. Lawrence, from those which fall into the Atlantic Ocean ;
thus in every particular satisfying the words of the above named trea-
ties," &c.
It is contended in the British Statement: “that the American State-
ment has given to the Treaty expression, dividing rivers, a narrowness
of signification which is by no means borne out by the words them-
selves :" . . . . . . . . . . . 6 and that, any highlands
rising above the heads of one set of the rivers to be so separated must
necessarily divide those rivers, (the Atlantic rivers west of the St Croix)
from the other set of rivers named in the treaty, (those falling into the
River St. Lawrence,) although those highlands may not extend equally
along the sources of the last mentioned rivers."
No attempt is made to prove that the word, “to divide,” is suscepti-
ble of the meaning ascribed to it.
But, alluding to another branch of the discussion, and taking it for
granted that the River St. John is not, within the meaning of the treaty,
an Atlantic river, the Author of the British Statement says that, had not
the negotiators intended to give the sense he ascribes to the words to
divide," they would have used, when speaking of the rivers to be divided,
a more comprehensive term than 6 Atlantic Ocean."
How the use of that, or any other term, in order to designate the por-
tion of the Sea into which the rivers to be divided empty themselves,
could possibly affect the meaning of the word “to divide,” it is impos-
sible to divine. Yet, this is the only argument adduced in proof of that
singular assertion.
The term “to divide,” according to the British interpretation, is made
synomymons with that 6 to lie between."
Whatever does divide, (or separate) must be contiguous to both the
things which are to be divided, (or separated) one from the other.
A line can divide no other territories, (or surfaces,) from each other,
but such as are contiguous one to the other. If not contiguous, they are
divided, not by a line, but by the intervening territory (or surface.)
In this instance, the rivers which empty themselves into the River St.
Lawrence are divided from the sources of the upper branches of the Pe-
British Line.
29
nobscot, 1st. by the highlands which divide the first mentioned rivers
from the Northern tributary streams of the St. John ; 2dly, by the en-
tire basin of the River St. John ; 3dly, by the highlands which divide
the Southern tributary streams of this river from the upper branches of
the Penobscot.
These last mentioned 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 empty 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 be 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, left the whole upper basin of the St. John, and, as will hereafter be
shown, left it knowingly, a subject of future dispute between the two
Powers.
It will be shown in a subsequent section, that the term “ Highlands
which divide rivers” is exclusively applicable to the ground in which
those rivers have 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 follows that none 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-west angle of Nova Scotia to the head of Connecticut River, divide
from each other the rivers that empty themselves into the River St. Law-
rence, from those which fall 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 precisely defined ; that it does not pre-
scribe, either to divide or not to divide rivers, with respect to any other
portion of the Boundary between the two Powers; and that every other
portion of the said Boundary is defined distinctly, and must be under-
3*
30
Terms of the Treaty.
stood as thus defined, according to the terms in which each such portion
is respectively described.
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
the north line, like Mars Hill, can divide no other waters.than 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 north
line, south of that contended for by the United States, and to any other
line than that 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 River 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, through 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
any map of the country, 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 the 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 hereafter demonstrated, that, with respect to the north-eastern
Highlands.
31
CE
boundary, the negotiators of the treaty, if they did prescribe such contra-
dictory conditions, diä it deliberately and knowingly.
$ 3.
Signification of 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 would 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 term 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 66 which divide the rivers, &c.” And it is according.
ly contended, on the part of the United States ; that the property of
dividing the rivers designated by the treaty, is that which affixes to that
expression a definite and precise meaning; that, united with that ad-
junct, the 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 rivers. On
the other hand, Great Britain maintains, that the term “ Highlands,” em-
ployed in the Treaty, implies, not merely lands which divide rivers flow.
ing in opposite directions, but high, i. e. elevated lands, or, in other
words, a mountainous tract of country ; that, it is not however neces-
sary, that those highlands should present an absolutely unbroken and
32
Terms of the Treaty.
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 term, 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 supposing, that highlands which divide rivers must be mountain-
ous.
Because the Alps divide the rivers of Italy from those of Germany
and France ; because those of France are divided from those of
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
Highlands.
33
“height of land,” or, “highlands," as used in America in 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 in Eng.
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 “ Versants” 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
any 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 American 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 of that ground, it was impossible for
the negotiators of the treaty of 1783 to divine, whether a line, dividing
the rivers specified by the treaty, would also be found to extend along a
generally mountainous country. And since it was 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
34
Terms of the Treaty.
term “height of land," and occasionally that of “highlands," is used
uniformly to designate the ground 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 450 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 441, 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, in 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 pame 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 been 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
sources of the River St. John, and (of) the western head of the Penob.
Highlands.
35
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 which meet about ten
miles above Albany, the one called the Mokawk's River, (rising in a
flat 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 north 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 " a flat level tract of country.”
Again, (page 13, “ Between the northern part of the Hudson's River,
and the southern parts of the Lakes (b) 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
0
correctness, the route pursued by the traders, from the junction of the
Utawas River with the St. Lawrence, near Montreal, to the waters of
(6) 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's and several other maps. :
36
Terms of the Treaty.
IT
the great Arctic, or McKenzie'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 1513 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 725 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 left 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 grand 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 ridge of land that 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 1775, says, “ In the evening we encamped at the inouth 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, after having described the route from the shores of Lake
Highlands.
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, Mcm
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 of 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 portage, (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 Michi.
gan) and Lake Huron, there is a peninsula that, at the widest part, is 150
miles, along which, and round 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 land'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
38
Terms of the Treaty.
its waters from those of the Illinois River, a tributary of the Mississiga
pi; and this land's height is a swamp, and at one place a pond, which,
when swelled by rains, discharges its waters both ways, so as that a canos
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 unexplored 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 very 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 terin 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, ac-
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 Ouelle 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 rods from those of
Indian and Hall's Streams, which empty themselves into the River Con-
necticut.
Atlantic LU
39.
Ocean.
S 4.
the
The term “ Atlantic Ocean” how far contradistinguished from
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 contradistinguished from the term 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 1793, 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
limitation 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 meauing 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 examined.
66 Sea," in its general sense, embraces the whole body of salt waters
40
Terms of the Treaty.
:
on the globe. Some of its parts 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, Pacific, Indian, Arctic,
Antarctic Ocean ; and each of these is a generic appellation, embracing,
when not specially or impliedly excluded, all the bays, gulfs, 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
those 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 German, or North Sea “ may be regarded as a part 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 is 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.
Malte.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 A 11-
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 iplets, 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.
41
difficulty. The generic term embraces, the specific name designates
the subordinate inlets : 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 as to exclude the inlet thus 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 Oceau” is not contradistinguished from, or united with, either
of those, “ Bay of Fundy” or “Gulf of St. Lawrence.” It must néces.
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 is
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 used
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 document, could be properly understood to include those inland seas.
But it may be confidently asserted, 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-
42
Terms of the Treaty.
can coast; or, that if there has ever been any exception, it is solely
that of the Gulf of Mexico.
Thus Governor Pownall, when speaking generally of the Atlantic
Ocean, considers it as embracing even the Gulf of Mexico. “We
know from observation how much higher the Atlantic Ocean is than the
Pacific; and how it is piled up against the American coast on the west-
ern shore 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 colonies or plan.
tations 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 East Flori-
da, extended along that line of demarcation beyond which it was forbid-
den to grant lands, from the north-easternmost sources of the River
Susquehanna which lie north of the 42d degree, to those of the Altama-
ha River in 33 degrees of north latitude.
The space occupied along that liųe by the sources of the Susquehan-
na, Potomac, James River and Roanoke, and their tributary streams, is
more than one half of the whole extent of the line. And of those four
rivers, the three first named empty themselves into the Atlantic Ocean,
through the bay of Chesapeake; and the last, through an inland bay,
known by the name of Albemarle Sound, which has no communica-
tion with the Sea, but through three narrow and shallow passes. It can-
not therefore be doubted that in this instance; by rivers which fall into
the Atlantic Ocean, those are meant which fall into its bays or inlets, as
well as those which fall directly into the main Ocean.
In the case under consideration, not only is the generic appellation of
66 Atlantic Ocean” used as distinguished from, and contrasted with the
River St. Lawrence alone ; but every river not emptying itself into the
said river, and intended to be divided, which was, or could possibly have
been contemplated by the framers of the treaty of 1783, as falling into the
Atlantic Ocean, falls into it through some intermediate gulf or bay,
known, and, in Mitchell's map, designated by a specific and distinct
name: that is to say ; the River Ristigouche, through the Bay des
Chaleurs, and the Gulf of St. Lawrence; the River St. John, through
the Bay of Fundy ; the Rivers Magaguadavic, (Mitchell's St. Croix)
and Scoodiac, (Mitchell's Passamacadic) through the Bay of Passama.
quoddy and the Bay of Fundy; the Penobscot through the bay of the
same name; the Kennebec through the Sagadahock Bay; and the
Connecticut River through Long Island Sound, which last inlet is as
much a close and distinct sea or portion of the Atlantic Ocean as the
Atlantic Ocean.
43
Gulf of St. Lawrence, and more so 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 expansions of the mouth of
rivers of which they bear the name, and to be regarded in no other light
than as portions of the rivers themselves.”
The assertion, that the term Atlantic Ocean does not generally
embrace the bays and gulfs connected 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 which are described in the
British Statement, as the expansions of the mouths of rivers, can be re-
garded in no other light than as portions of the rivers themselves, those
bays also which, like that of Fundy, are merely contractions of the
Oceant, must necessarily be regarded only as portions of the Ocean
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 River Connecticut is, as much as the
Penobscot and the Kennebec, one of the rivers described in the treaty,
as falling into the Atlantic Ocean, and which are 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, as falling into the Sea; and, in the treaty, as falling into
the Atlantic Ocean.
The word “ Sea” is more comprehensive than the words Atlantic
Ocean, not as including bays or gulfs, which are parts of the said
(cean, but because it also embraces the Pacific, Indian Oceans, and
other great subdivisions which are no part of the Atlantic. And as
none of those great subdivisions of the Sea, save the Atlantic Ocean,
has any connexion with the subject matter of the Proclamation,
(c) The Connecticut River rises in latitude 45° 10', at the height of land; it has
its birth ......at the height of the land. (Pownall as already
quoted.)
44
Terms of the Treaty.
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
“ Sea” and “ Atlantic Ocean" are used there in the same sepse. 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 our 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 which fall into the Atlantic Ocean from the west, or north-west,"
8.c.. And the Proclamation then proceeds to deelare 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 west, and north-west as afore-
said,” fic.
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 Allan-
tic, or Western Sea, or Ocean." The British Agent under the commission of 1797,
alluding to the southern boundary of the Province of Quebec as prescribed by the
Proclamation of 1763, describes it, as highlands dividing the waters of the river St.
Lawrence, from the rivers which fall into the Sea, or " Atlantic Ocean."
Atlantic Ocean.
45
was the Governor at the date of the Provisional Articles of Peace of
November, 1782, and of the definitive treaty of September, 1783, that
Province was declared to be bounded on the westward, 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 Colony of
Quebec ; and, to the northward, by the said boundary, so far as the west-
ern 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 Proclamation 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 18th of September, 1777, to
Frederick Haldimand, who was still Governor in November, 1782, and
September, 1783, the said Province is, in conformity with the Quebec
Act of 1774, declared to be s bounded on the south, by a line from the
Bay des Chaleur's 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 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 be
on the highlands which divide the Rivers that empty themselves into
the River St. Lawrence, from those which fall into the 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 Government, had
been declared to be, on the highlands which divide the rivers that empty
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. Lawrence
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 River St. Lawrence
from those which fall into the Sea; and therefore, that the term “ Atlantic
Ocean,” as used in that clause of the treaty, is synonymous with the
word “Sea,” as used in the previous Acts of the British Government.
It is principally on the restricted sense in which, by the express terms
of the treaty, the term Atlantic Ocean must in one clause be understood,
Terms of the Treaty.
that Great Britain relies, in 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 into 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 extreme 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 equally explicit terms, des-
cribed, as terminating in the Bay of Fundy, by 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."
6. 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 comprehended 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, “Bay 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 affirmed that, “nothing
can be more clear or positive than the distinction established in the ar-
ticle of the treaty between the Atlantic Ocean and the Bay of Fundy."
Atlantic Ocean.
47
rio . . . . . . . . 66 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 fram-
ers of the treaty, when thus using the term Atlantic Ocean, had in view
that part of the sea, which lies westward of the mouth of 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-
cluded in the term Atlantic Ocean, as a general appellation applied to
the Sea coast. The framers of the treaty, when describing St. Mary's
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
application."
5 And this being the case, as beyond 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 their 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 ?"
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 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.”
Here the St. Mary's River is designated as having its mouth in the
43
Terms of the Treaty.
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 shores 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
the 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 question at issue is, whether, because in one part of the article,
the Bay of Fundy is twice designated by its specific name, and once as
contradistinguished from the Atlantic Ocean, the two terms must be con-
sidered as distinct and separate throughout the treaty : whether, because
the meaning of 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
same 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 to all 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.
ed from Woman, embraces only the male sex. The same term man,
in the first part of the sentence, does undoubtedly embrace both sexes.
Atlantic Ocean...
49
O
Yet 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 southern 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 the
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
66 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 language,
50
Terms of the Treaty.
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 each power. Such intent the expression 6 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?”
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 first 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.
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 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, 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.
51
have been for some other purpose, than in reference to the Eastern
Boundary of the United States ; since, 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 required, that they should be described in the same
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
them 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 Fundy 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 sentence. 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 river, 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
52
Terins of the 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 of the treaty. (e)
This mention of the fact that the River St. Croix had its mouth 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 that 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
1765 made a large grant of land to Francis Bernard, and others,
west 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 west 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 :
6 The River Passam-Aquâda, or Possam-Accâda, which runs into a
(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 Fundy, to the mouth of the River St. Croix, by the said river to its
source," :O
Atlantic Ocean.
53
bay so called, is the supposed eastern boundary of New England; to the
east of this begins Aquâda 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 Downall un-
certain, which of the rivers between those limits 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 motive
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 was the true River St. Croix; it being said
that several of them had that name. They did finally agree that the River
St. Croix, 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 Schoodic and 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, (15 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
5*
54
Terms of the Treaty.
line between the Provinces of Massachusetts’ 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 case, 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 the 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 known indiscriminately
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 Nova 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 claimed 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 Passama-
quoddy Bay, had expired with the act itself. (f)
c) The reason why the British Agent 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.
55
It was that provision in the treaty itself, declaring the mouth of the
River St. Croix to be in the Bay of Fundy, which afforded the security
required in 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 in 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, the 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 Bay; since, as
will appear by Mitchell's Map, Machias River, which is the next in that
direction, lies west of the Western extremity of Grand Menan Island.
It 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 of Fundy?
Such specific designation of the Passamaquoddy Bay was unneces-
sary ; since it would not have rendered the description more precise,
with respect to the object 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 left it equally doubtful,
which of the two rivers was the true St. Croix. The negotiators being
unacquainted 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 prevailed 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 the precautions taken in that respect, the river contem-
56
Terms of the Treaty.
plated by the negotiators, that which in Mitchell's Map bears the name
of St. Croix, has not been confirmed as the boundary between the
two countries. The Schoodiac, the most westerly river that empties
into Bay of Fundy, has been decided to be the true St. Croix. But from
what has been stated, and indeed, judging from the arguments adduced
in support of the claim now advanced by Great Britain, it may be fair-
ly presumed, 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
the 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? 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 to the
negotiators.
Atlantic Ocean.
It is urged in the British Statements, that the arguments 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, since the provision would have apparently been as complete,
had that name been omitted, and the clause had simply declared the right
to take 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 effect. 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 at 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
what sea was meant cannot be doubted, unless it should be denied that
the Banks of Newfoundland are in the Atlantic Ocean.
58
Terms of the Treaty.
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, 6 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
Another instance will be mentioned, where the meaning and effect of
the expressions used were considered with deliberate attention.
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 65th 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 or 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 tiine for all parts of the Medi-
terranean.--- And one hundred and fifty days for all other parts of
the world, without exception."
The words used in reference to the period of twelve days, viz : 6upon
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 bea
tween Cape Ray, of Newfoundland, and the North Cape of Cape Bre
Atlantic Ocean.
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 in 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 Atlantic Ocean as far
east as the British Channel, and south as 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. Lawrence, 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 term of 150 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
months. 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 : which was effected, by
extending the period of twelve days 6 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
making that proposal (of the 1st December, 1814), had duly attended to
the propriety of specifying, by their distinct names, those outlets or seas
respecting which there might be some doubt; and which from long and
common usage might be considered as not included within the term
66 Atlantic Ocean." Amongst others, 6 the Gulf of Mexico and all parts
of the West Indies” were distinctly specified, as coming within the term
of thirty days; and the gulf of St. Lawrence was 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.
60
Terms of the Treaty.
The boundary between Noya 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, declared 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 line 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 different direction. This necessity
common to the highlands of the treaty and to those of the Proclamation
of 1763 and of the Quebec Act, identifies 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.
Negotiations of 1782.
§ 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 instruc-
tions, the boundaries of the United States are declared to be as follows,
viz :
66 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
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
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 name 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 5 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-
62
Intentions of the Negotiators.
sitions made by them, and agreed upon on the Sth of October, 1782, bes
tween them and Richard Oswald, the British Commissioner, (but to be
submitted to His Britannic Majesty's consideration,) defined the 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 by Commis.
sioners, as soon as conveniently may be after the war.” (a)
Counter-proposals were transmitted from London, which have not
been preserved. (b) 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 the 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.
(6) 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, and has not been adduced
in evidence by the British Government.
have been, that it must be inferred from the Charter, as connected with other docu.
ments, that the St. Croix was the Boundary.
Negotiations of 1782.
83
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 1783.
Whence it is inferred, “ that the highlands designated in the projet,
being then intended to divide the Androscoggin, Kennebec, and Penob-
scot Rivers, 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 southernmost branch of that river, or supposing
it to have been the source of either, the north-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-
64
Intentions of the Negotiators.
lands, and issues from the highlands which divide the Penobscot from
the St. John.
On the contrary, 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 5 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 was 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 within
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
Negotiations of 1782.
;
65
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 690 18'
west longitude, 460 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
(d) This 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*
66
Intentions of the Negotiators.
the right bank, and giving to Nova Scotia the whole country on the left
bank of the river, from its source to its mouth. It will appear at orice,
from an inspection of the map A, and of Mitchell's Map, that, from
either 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
have been thus within the boundaries of the United States, and that on
the north-west side within those of Nova Scotia. Whatever breadth
might 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, east,
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 John, from its western-
most source, as designated in that map, to the due north line, and even
for some distance beyond 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 increase 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 borders 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
Negotiations of 1782.
67
which alone there were any settlements at the time, is quite 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 the 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 Negotiators.
The separate 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 330 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.
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 Mississippi 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
our 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 throw 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
Negotiations of 1782.
69
their attention principally to rivers, and moreover, to rivers in their
whole extent.
This, it is said, appears distinctly from the proceedings of the old
Congress and from the negotiations of 1782, Nothing more appears,
in that respect, from those proceedings and negotiations, than the re-
jected proposal, to make the River St. John the 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 respectively, 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 must 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 45th 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 these 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
11-
770
Intentions of the Negotiators.
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 ?”
It is 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
from 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 Connectieut 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 other 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, fowing from the
south, fall into the River St. Lawrence below St. Regis, and all the
rivers 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 River, 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 St. Lawrence, and to the extensive coun-
tries situated on its waters. And, on the principle she assumes, she
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-
Negotiations of 1782.
171
1
.
rence, and of its great reservoirs, which belongs to the United States,
as she 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 their 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
Lake 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 Great Britain insists, that the intention 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 the St. Croix,
and before it reaches Mars Hill, no less than three of those tributary
streams, viz : Bull's Branch, the River Meduxnekeag, and the Presqu
Les
uvy.
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 acknowledged by
Great Britain to be within the territories of the United States, although
the mouth of that river is within her dominions.
Britain to be withing by those three rises thirty eight mile
§ 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 its
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 the second article, that in order
6 that all disputes which might arise in future on the subject of the boun-
daries of the said United 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 limits
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 there 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
Former Boundaries.
73
and the River Kennebec, which was the eastern boundary of the 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 that territory to Massachu-
setts, 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,
dated 30th of October, 1700, to the Earl of Bellamont, the Governor of
Massachusetts, viz : “ As to the boundaries, we have always insisted,
and shall insist upon the English right, as far as the River St. Croix.”
France, by the Treaty of Utrecht of 1713, ceded to Great Britain
Nova 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 limits till the year 1763. Subsequent to the treaty of Utrecht, the
British Government, several times, called in question the title of Massa.
chusetts to the territory between Nova Scotia and the River Kennebec.
The law officers of the Crown, to whom the case had been referred,
gave in the year 1731, a decided opinion in favor of Massachusetts,
which 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 Periobscot.”
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 was pre-
cluded by the order of Council, grounded upon the opinion of the attor-
ney and solicitor-general in 1731. And when that grant was, in the
year 1771, confirmed by the Crown, it was with the following proviso,
viz: “Provided nevertheless, that his Majesty's approbation and confir-
(e) By reference to the charter, it will be seen that the boundary of the Province
Cowards the Sea is designated as "the Atlantic or western Sea or Ocean."
74
Intentions of the Negotiators.
mation 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.
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 line 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-
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 lead to a line, drawn from the source of the St.
Croix to the head waters 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 terms 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.
75
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 north-east 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 Crown 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
the other part, had been actually fixed by the British Government in the
year 1763, the United States contend 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 proposed 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
suggestion, 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
doubt 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, was abandoned ; and it was confirm-
ed as far east as the River St. Croix, and from the Sea Coast to the
highlands which form the southern boundary of the Province of Quebec.
76
Intentions of the Negotiators.
The boundary, determined by the treaty of 1783, is in exact confor.
mity with that claimed by Massachusetts under its 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.
vernment:
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. annexed to Wynn's His-
tory of the British Empire, &c. London, 1770.
4. J. Palairet's North America, with Improvements, &c. by Dela-
rochette, London, 1765.
5. 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, by the American Traveller, annexed
to the “ American Traveller," &c. London, 1769.
Former Boundaries.
177
7. North America and West Indies, with the opposite Coasts, &c.
London, 1775.-(Jeffery's Atlas.)
8. North America improved from D'Anville, with divisions by P.
Bell, Engraved by R. W. Seale.---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.)
13. Sayer and Bennett's Province of Quebec, &c.--London,
1776.—(Jeffery's Atlas.)
14. 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.)
16. Continent of America, &c. corrected from the materials of
Governor Pownall.-- London, 1777.
17. W. Faden's British Colonies in North America, 1777.
18. North America from the latest discoveries, 1778; engraved
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, where 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,
:(f) Most of the differences are found in the western boundary of Nova Scotia.
and not in the southern boundary of the Province of Quebec. The reason is, that
the proclamation of 1763 which prescribed this last boundary, had been published in
a variety of ways and was known to all ; whilst the Commissions of the Governor
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*
Intentions of the Negotiators..
po'
ó
"
'
in...
west of north ; and, 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 soine
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 třte 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 so
clear as to admit of no doubt, and to be susceptible of but one construc.
tion. What effect 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 1783 :
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 1755.
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
25th of October, 1784, when Mr. Adams's recollections on the subject
were quite fresh, he writes : “ We had before us, through the whole nego-
tiation, 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 ;
itJo
Former Boundaries.
79
ht
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.” (8)
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 16th 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, 66.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 were 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 had 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 samé 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 the 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 sufficient
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 observed 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 Negotiators.
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 definitive 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 the Boundaries, viz:
No. 19. Sayer and Bennet's United States of America with the
British possessions, &c. London, 9th February, 1783.
20. Bew's North America, &c. (or Rebel Colonies, now Uni-
ted States,) engraved for the Political Magazine. Lon-
don, 9th February, 1783.
21. J. Wallis' United States of America, &c. London, April,
1783.
22. J. Cary'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-
(h) 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 Boundaries.
81
siderable portion, and since the Treaty of Utrecht, over the whole
country watered by the River St. John. That the whole country was a
perpetual subject of litigation between France and England, is well
known. Neither of the two Powers, in its 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
appealed 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 sale 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, 1802, subsequent to the Treaty of 1783. Of
the four leases, one is dated in 1786, and the three others are the only
acts produced, dated subsequent to the proclamation of 176%
and previous to the Treaty of 1783. That such obscure trar's-
actions could have had any effect on the result of the negotiations for
peace, or have even been known to the negotiators, 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 judges 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 judge, bears date, July, 1763,
before the limits of the province had been prescribed by the British
Government.
But there was a sufficient reason, why those several instruments
should have been thus recorded. Every one, whether lease or deed of
sale, included not only the 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-
82
Intentions of the Negotiators.
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 au average depth
of more than two leagues. All the subsequent deeds of sale 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 declares 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 shown 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 authority. The order applied only to the
white inhabitants of Canada, residing within the acknowledged bounda-
ries of his Province; 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 effect, it is s 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, where such 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 refer.
ence to their place of residence, and not to that of the Indians.
Tepographical Knowledge.
Topographical knowledge of the Negotiators.
1
It has been repeatedly asserted, in the British statements, that the im.
perfect knowledge of the topography of the country rendered 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 topographi.
cal 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 1783, 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 terms of the treaty, in reference to the point in ques-
tion, manifest the uncertainty of the Negotiators; and they appear to
have left 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 doubt, 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 the
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, viz: “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
84
Intentions of the Parties.
possess the topographical details necessary 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 the framers of the treaty had a knowledge of the
topography of the country amply sufficient, with respect to the north-
eastern boundary, to enable them, whatever their intentions might be,
to describe it with great correctness in reference to the rivers.
It is observed in the British Statement, “ that if little was ascertained
concerning the sources and directions of rivers, which generally afford
the earliest means of communication, and the most convenient places
for settlement in newly occupied countries, how very much less was
probably known of a hilly or mountainous tract, situated at a distance
from the Sea, overgrown with forests, and intermingled with extensive
morasses.” This passage is quoted, on account of its admitting, as the
United States maintain, that nothing was known of the nature of the
ground over which the boundary might pass, and as acknowledging, that
something at least was known concerning the sources and courses of
the rivers. The following passage is more in point :
“Some knowledge, however, though in many respects limited and in.
accurate, must surely have existed of a region not wholly destitute of
settlers, which had been traversed not long before by a body of Troops,
and previously investigated by an Officer in the public employment, and
of which several maps exhibiting the supposed courses of the principal
rivers and the general outline of the coast and bays had been published.
That knowledge, whatever may have been its degree, must surely have.
reached the Negotiators of the Treaty ; and there can be little doubt that,
in describing the Boundaries of the United States, they were more or
less guided by its influence.”
Although the numerous maps published between the years 1763 and
IM
L
far as related to the southern boundary of Canada therein delineated, it
could not be denied that they were a proper evidence of the knowledge
then generally had of the topography of the Country. It would be pre-
posterous to suppose, that the Negotiators of the Treaty had not the same
general geographical information which every one who looks at maps
does possess; or that their attention was not called to that which was
a principal subject of discussion in the course of the negotiations. Nor
can it be denied, that maps have been considered among the best evi.
dences of the general geographical knowledge at the time when such
maps were published.
All the maps published between 1755 and 1783 agree with that of
Mitchell's, as regards the interior portion of the country, and specially
Topographical Knowledge.
85
the course and length of the River St. John. That entire coincidence,
respecting those general features, which, as will be seen, were sufficient
to enable the Negotiators of the treaty to define in the most precise
manner the portion of the boundary in question, proves that those fea-
tures were an universally known and adınitted Geographical fact. That
knowledge was till 1783, and for several years afterwards, almost exclu-
sively derived from the explorations of the French when they were in
possession of the country.
The French map which is the type of all those which followed is, that
of the Eastern part of New France or Canada published, in 1744, by the
Engineer Bellin, and annexed to the History of New France by Charle-
voix, published the same year. The following observation appears on
the face of the map ; “ This map is very different from any that has as
yet appeared. I owe that knowledge to the several manuscript maps,
plans and journals in the Depot of the Marine, and to the memoirs
communicated to me by the Jesuit Missionaries.”
Mitchell's map is, for the portion of the country now in question, al.
most a transcript of that of Bellin. Great Britain cannot reject its au-
thority, which is proved by the evidence of the framers of the Treaty,
and which is acknowledged by the Convention of 1827, to have regu-
lated the joint and official proceedings of the Negotiators. When the
assertions, of the imperfect topographical knowledge then had of the in-
terior of the country and of the consequent absolute impossibility for the
framers of the Treaty of 1783 to describe the boundary with sufficient
accuracy, are recollected; the vast advantage will immediately be per-
ceived of having at least one map, mutually acknowledged to be conclu.
sive evidence of the topography of the country, as it was understood by
them, and by which, comparing it with the terms of that instrument, the
true intentions of those ministers may be ascertained; and to this map
alone, independent of any subsequently published, and even setting aside
every other evidence that may elucidate the subject, the United States
will now appeal, as the proper test of those intentions.
The great River St. John, which is the principal feature of the inte-
rior and disputed territory, is laid down by Mitchell with considerable
accuracy, both as to course and distance, from the place where it is in-
tersected by the due north line to its sources. It will at once be seen,
that the boundaries respectively claimed by the two parties, which have
for that purpose been now traced on his map, do not materially differ
from those delineated on map A.
It will there be seen, that it was perfectly well known to the negotia-
tors :
line ; that the whole upper basin of that river did intervene between
86
Intentions of the Parties.
the sources of the Penobscot and Kennebec, and those of the rivers
which fall into the River St. Lawrence:
That, from the source of the River St. Croix to the sources of the
tributary streams of the St. Lawrence, there was not on the due north
line, which is distinctly marked on the original map, a single point
which divided any other rivers whatever from each other, than streams
falling into one and the same river, viz: the St. John :
That the said due north line did, between the source of the St. Croix
and that of the tributary streams of the St. Lawrence met by that line,
intersect the main River St. John :
That any line, drawn along the dividing highlands, from any point
on the due north line south of the River St. John, towards the sources
of the Kennebec and of the Chandiere, must through its whole extent,
or near 120 miles, according to the map, divide no other rivers from
each other than the sources of the tributary streams of the St. John from
those of the several branches of the Penobscot and of the Kennebec :
That any line drawn towards the sources of the Chandiere from any
point on the due north line, north of the River St. John and south of
the highland which divides the northerly source of that river from the
waters of the St. Lawrence, would divide no rivers whatever from each
other, but would intersect the several branches of the St. John:
And that a line drawn along dividing highlands, from the highland
which on that map divides, the sources of the tributary streams of the
St. Lawrence from those of the St. John, to the highland which divides
the sources of the Kennebec from those of the Chandiere, must through
the whole distance, or 150 miles in a straight line according to the map,
necessarily divide the sources of the tributary streams of the St. Law.
no other rivers whatever.
With all those data before them, which may be verified by an inspec-
tion of Mitchell's map, it is impossible to deny that the negotiators of the
Treaty of 1783 had all the knowledge necessary to describe the boun-
dary with sufficient accuracy.
The mistakes of longitude in Mitchell's map do not affect the question,
since the relative position of the principal points was all that was ne-
cessary for a correct description of the boundary. The length, in a
straight line, of Mitchell's St. Croix from its mouth to its source is a
few miles greater than in map A. The length, of the due north line
from the source of the St. Croix to that of a river emptying into the St.
Lawrence is about twenty miles shorter in Mitchell's than in map A;
The westernmost source of the St. John is in both maps placed north
of west from the source of the St. Croix, and the distance between those
two points is twenty miles shorter in Mitchell's than in map A ; Mitch-
Topographical Knowledge.
87
ell's Lake Medusa, which is the Lake Temisquata of map A, is placed
50 miles east of its true position. It is clear that neither of those dif-
ferences could affect the general result or prevent an accurate description
of the intended boundary. (1)
With those facts before them, if the negotiators of the treaty had in-
tended that the north-west angle of Nova Scotia should be placed on
highlands situated south of the River St. John, or on any point of the
due north line lying between and dividing only tributary streams of the
River St. John, it is impossible that they should have described that
angle as being on highlands dividing the waters of the River St. Law.
rence from rivers falling into the Atlantic Ocean.
It is equally impossible, that if the Negotiators intended that the boun-
dary, from the due north line to the sources of the Chandiere, should for
one hundred and twenty miles, either divide the sources of the Penob-
scot and of the Kennebec from those of the St. John, or should, without
dividing any rivers, only intersect branches of the St. John, they should
have described such a boundary, as being on Highlands dividing the
waters of the River St. Lawrence from the rivers falling into the Atlan-
tic Ocean.
Yet it is asserted by Great Britain, that it was the intention of the
parties to the treaty of 1783, that the point designated in it, as the
north-west angle of Nova Scotia ; that is to say, the point at which the
line drawn due north from the source of the River St. Croix meets the
intended Highlands and terminates, should be found to the south of the
River St. John.
And it was manifest by Mitchell's Map, and therefore perfectly well
known to the Negotiators, that no point or part of the due north line
aforesaid, south of the River St. John, did or could divide, from each
other, any rivers whatever, but some branches of the said River St. John.
It is, therefore, contended, on the part of Great Britain, that, intend-
ing to designate, as the north-west angle of Nova Scotia, and as the
termination of the due north line which forms the Eastern boundary of
the United States, some point known to them to divide, from each
other, no other rivers than some branches of a river, which falls neither
into the River St. Lawrence, nor (according to the hypothesis,) into the
Atlantic Ocean ; the framers of the treaty did deliberately describe
that Eastern boundary, as a line drawn from the source of the River St.
Croix, 6 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 ;" thus defining the termination of that line, or
111
(i) The fact, that the north-west angle of Nova Scotia has been found to be on a
highland which divides the waters of the River St. Lawrence from those of the Risti.
gouche, will be hereafter adverted to.
88
Intentions of the Parties.
north-west angle of Nova Scotia, by a designation known to them not
to apply to the point which they intended to define.
It is again asserted by Great Britain, that the Highlands which actu-
ally divide the rivers specified by the treaty, and which alone were con-
templated as such by the Negotiators, are only those which, from the
north-westernmost source of the Penobscot, to the north-westernmost
source of the Connecticut River, divide the Rivers Penobscot, Kenne-
bec, and Androscoggin, from the Rivers Chandiere and St. Francis,
which empty themselves into the St. Lawrence; and that the boundary
line, intended and described by the treaty, does, from the above-men-
tioned point south of the River St. John, on the due north line, extend
south of the said river, along the heads of the River Penobscot, to its
north-westernmost source, as it is delineated on the Map A.
But it was manifest by Mitchell's Map, and therefore perfectly well
known to the Negotiators, that the nearest source of the River Chandi-
ere, was about one hundred and twenty miles distant, in a straight line,
and in a nearly westerly course, from any point of the due north line;
that, through that whole extent, the line would not divide, from any other
river whatever, any river that empties itself into the River St. Lawrence;
and that it could not, through that whole extent, divide any other rivers
from each other, but the Penobscot and the Kennebec from the tributary
streams of the River St. John ; that is to say, rivers falling into the At.
lantic Ocean, from a river falling (according to the hypothesis,) into the
Bay of Fundy.
It is, therefore, contended on the part of Great Britain, that, intending
to designate as the boundary line, from the north-west angle of Nova
Scotia to the north-westernmost head of Connecticut River, a line which,
passing south of the River St. John, was known to them to divide, for
three-fifths of its extent, no other rivers from each other, than rivers fall-
ing into the Atlantic Ocean, from a river falling into the Bay of Fundy ;
and knowing that the said boundary line would not, at a shorter distance
Highlands which actually divide the rivers that fall into the Atlantic
Ocean from those which empty themselves into the River St. Lawrence ;
the framers of the treaty, intending also, as expressly stated, that their
description of the boundaries should be such as that all disputes which
might arise in future on the subject of the same, might be prevented ;
did deliberately, and after much contention on the subject, ultimately
agree to define the boundary thus intended to be established, in the fol.
lowing words, viz :
6. From the north-west augle 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, along the said Highlands which divide those rivers
Topographical Knowledge.
89
that empty themselves into the River St. Lawrence, from those which
fall into the Atlantic Ocean, to the north-westernmost head of Connec-
ticut River."
That is to say, that, in defining the boundary in question, those min.
isters described a line which, to their knowledge, divided, for three-fifths
of its extent, rivers falling into the Atlantic Ocean from a river falling
into the Bay of Fundy, as a line dividing rivers falling into the Atlantic
Ocean from rivers emptying themselves into the River St. Lawrence;
thus adopting a description which, to their knowledge, was applicable
only to eighty miles, out of the two hundred, along which the said boun.
dary does, and was known by them to extend ; and which, to their
knowledge, was entirely inapplicable to the one hundred and twenty
miles next to the place of beginning, or to three-fifths of the whole
length of that boundary.
This incredible misapplication of language, or indeed gross absurdity,
is ascribed to eminent and practical statesmen, some of them not less
remarkable for the precision and perspicuity of their style, than for the
clearness of their conceptions; and in a case where the description, be-
ing corrected in relation to the River Connecticut, affords an incontes-
tible proof of the strict attention they paid to the terms used in describ-
ing that part of the boundary.
What renders the supposition, that those ministers expressed them-
selves in terms so contradictory of the intentions gratuitously ascribed
to them, still more untenable, is, that there would not have been the
slightest difficulty, with Mitchell's Map before them, in defining with
the utmost precision, if so intended, the boundary line as now contend-
ed for by Great Britain.
Had the intention been, as is affirmed, to assign to Great Britain the
whole of the basin of the River St. John, there would not have been any
occasion, either to refer to the north-west angle of Nova Scotia, or that
any part of the boundary should have been a line drawn due north from
the source of the River St. Croix. In that case, the boundary would, by
any ordinary conveyancer in possession of Mitchell's Map, and of the
intentions of the parties, have been described in the following words, or
in other as explicit, and of the same import, viz:
From the source of the River St. Croix, along the Highlands which
divide the rivers that empty themselves either into the River St. John,
or into the River St. Lawrence, from those which fall into the Atlantio
Ocean, west of the mouth of the River St. Croix, to the north-western-
most head of Connecticut River. . . . . . . . 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.
Had it been intended, though for what object, with the intentions
8*
90
Intentions of the Parties.
ascribed to the Negotiators, is altogether unintelligible, that a due north
line drawn from the source of the River St. Croix, should form a part of
the boundary, a slight alteration in the phraseology would, with equal
facility, have effected that purpose.
These conclusive observations, as well as the other arguments addu-
ced on the part of the United States, in opposition to the line hereto-
fore contended for on the part of Great Britain, are equally applicable
to any other boundary that may be suggested, other than that claimed
by them.
Since the north-west angle of Nova Scotia, and the boundary extend-
ing thence westwardly are both expressly described in the treaty, as be-
ing on and along the highlands which divide the rivers that empty them-
selves into the river St. Lawrence, from those which fall into the At-
lantic Ocean : it is impossible that the negotiators should have intended
to designate as that angle and as that boundary, any other point and any
other boundary, than the only point and the only boundary which, on
Mitchell's Map, divide the waters of the River St. Lawrence from any
other rivers whatever.
And since the only rivers which on Mitchell's Map are divided or
separated on the due north line, and thence westwardly and south-west-
wardly for more than one hundred and fifty miles from rivers falling in-
to the Atlantic Ocean, are the tributary streams of the St. John, it ne-
cessarily follows, that the negotiators must have considered that river as
falling into the Atlantic Ocean.
With Mitchell's Map before his eyes, no person can doubt, that, if
the framers of the treaty considered that river as not falling into the At.
lantic Ocean, they did designate both the north-west angle and boun.
dary aforesaid, by terms known to them not to apply to the angle and
boundary which they intended to designate.
And with the said map before him, every one will be satisfied, that if
they did consider the St. John as one of the rivers falling into the At-
lantic Ocean, the negotiators could not have described the north-west
angle of Nova Scotia and the boundary between the two Powers, in a
more precise manner than in the terms of the treaty. It is for that rea.
son that, unable otherwise to adapt the terms of the treaty to any other
boundary than that claimed by the United States, the authors of the
British Statements have been compelled to ascribe to the framers of the
treaty a gross ignorance of those general features of the country, which
were at the time universally known to all those who had the most su-
perficial knowledge of geography. The whole argument adduced on
the part of Great Britain, in order to explain the supposed ambiguity of
the terms of the treaty, is condensed in the following passage from the
second statement.
Topographical Knowledge.
91
- What reasons may have prevailed with the negotiators, on the sup-
position that they intended to designate highlands to the south 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.”
6 In the first place, by retaining in the clause respecting rivers and
highlands the term Atlantic Ocean,' in connection with the limited
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 Boandary Line with minuté 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-
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."
66 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. All 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 known 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
92
Intentions of the Parties.
the varying circumstances 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,
the source of the 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
interseetion, 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 rivers, within the territory of the United States. To-
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 sufficiently 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 Chandiere.”
6 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 Knowledge.
93
tion of the north-west angle of Nova Scotia; thirdly, the want of suffi.
cient topographical knowledge.
The last supposition has now been put at rest; and it has been de-
monstrated, that the definition of the north-west 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 not specify that intention by the terms of the 'Treaty, nothing
remains but the retention of the terrn Atlantic Ocean as above stated.
(j) And it is asserted in the British Statement, that though the treaty
names but two classes of rivers, a third class was contemplated, viz:
rivers which fell neither in the Atlantic Ocean, nor into the River St.
Lawrence.
It cannot be denied, and is evident from Mitchell's Map, that the Ne-
gotiators knew, that any line whatever, drawn from any point what-
ever on the due north line towards the sources of the Chandiere and of
the Penobscot or Kennebec, necessarily must, through the whole dis-
tance or two thirds of the whole boundary between the due north line and
the sources of the Connecticut, either intersect all the branches of the
St. John, or extend along the ground dividing the sources of those
branches from those of the tributary streams of the St. Lawrence or of
the Penobscot. They knew that any such line must necessarily run
through, or along the limits of the whole intervening upper basin of that
River, which river, as is asserted, they did consider as not falling into
the Atlantic Ocean. And it is seriously suggested that, in order to give
effect to that intention, they resorted to the mode of defining that iden-
tical line, as being on the highlands which divide the rivers that empty
themselves into the River St. Lawrence from those which fall into the
Atlantic Ocean.
It is asserted, that the Negotiators knowing, that all the maps on which
the southern boundary of Canada was delineated, placed it on the ground
which divides the waters of the River St. Lawrence from those of the
River St. John, and that such had been and was the general understand-
(3) The retention, from the rejected Article which made the St. John the boundary
of the term “ Atlantic Ocean," or the substitution in the treaty of that term in lieu of
the word "Sea" used in the proclamation of 1763. The difference between the treaty
and the Proclamation does not consist in the word "Sea” having, in reference to the
American shores, a more extensive meaning than“ Atlantic Ocean;" but in that, the
"Sea” is not contradistinguished from any of its inlets in any clause of the Proclama-
tion, which is not therefore liable to the groundless objection raised, on account of
such contradistinction in another clause of the Treaty, of the Atlantic Occan with
one of its inlets. But since the boundary of the Treaty is the same with that of the
Proclamation, the St. John, which was an Atlantic river according to the Proclama-
tion, is an Atlantic River according to the treaty.
94
Intentions of the Parties.
ing; knowing also that, according to Mitchell's map, the terms of the
Treaty could not, whatever was the meaning attached to the term Atlan-
tic Ocean, apply to any other boundary than that which thus divides the
said waters; perfectly aware therefore that, unless the St. John was deem-
ed to be a river falling into the Atlantic Ocean, the north-west angle of
Nova Scotia and the boundary prescribed by the terms of the Treaty had
no existence; and satisfied, as they must have been, that the terms of
the Treaty could not be understood by the American Negotiators, other.
wise than as confirming the said southern boundary of Canada on the
Highlands which divide the waters of the River St. Lawrence from those
of the St. John; the British Negotiators intended nevertheless, by re-
taining in that clause the term Atlantic Ocean, and combining it with
the restricted meaning of the same term in another clause, to place the
boundary in direct contradiction of the terms of the Treaty, or, if that
was impossible, to give a designation of the boundary which, as they
knew, could not be carried into effect.
This, though certainly not intended, might be construed as a grave im-
putation on the British Cabinet and negotiators, which the elevated
character of the distinguished statesman, who presided at that moment
over the British councils, would alone be sufficient to repel. But the
fact is that the negotiations were carried on, on both sides with perfect
sincerity and good faith, and even with feelings much more friendly
than might at that moment have been expected. Those feelings were
manifested throughout the whole negotiation, and particularly, by the de-
sire evinced to insert in the Treaty a liberal commercial arrangement,
and by the separate article concealed, contrary to their instructions, by
the American Ministers from the French Government.
The presumed ambiguity of the terms of the Treaty is the consequence
of the unten able construction which is now attempted to be put upon it.
As applied to that construction, the terms are not merely of doubtful
import ; the pretended construction is in direct opposition to them. As
11
clear and precise. They were thus understood by both parties at the
time when the Treaty was concluded. And if any doubt remains on
that point, an appeal is fearlessly made to the Archives of the British
State Office.
The Government of the United States is in the habit of publishing
every thing. In the course of the discussions on this subject Great
Britain has made use, as she had a right to do, of those publications.
In a direct negotiation between the two Countries, the United States can-
not require a reciprocity of communications in that respect. But, if
they voluntarily agree to a second reference, they have a right to ask,
that they should be placed before the Arbiter on an equal footing with
17
*
Topographical Knowledge.
95
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 correspondence 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 Ministers to their Government.
. By the Convention of 1827, the contracting parties were bound to
give copies only of 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, the framers 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 improbable, as the boundary would have been
more natural. But this is mere conjecture ; and, whatever may have
been the intentions of the negotiators, 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)
(1) An authentic copy of the opinion of the Law Officers of the Crown was
found in the Archives of Massachusetts, but the order in council was not obtained.
(1) 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 (Malte Brun, Bouchette,
&c.) The signification of the term Atlantic Ocean is restrained in the clause which
refers to the division 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 the 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 other clause, Bay of Fundy is dis-
tinguished from the main Ocean, or from the whole Atlantic Ocean, the Bay of Fun-
dy only excepted.
96
Recapitulation.
§ 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 word 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 the summit of the said north-west angle,
is described, in a subsequent clause, as a line to be drawn from the
source of the River St. Croix, directly north to the aforesaid 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 than from,
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 in 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 Restook 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
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 no 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, but a direct and obvious
violation of the express terms of the treaty. The attempt to obviate this,
by calling the Highlands claimed on the part of Great Britain, a contin.
uation of, or, connexion with the Highlands, one hundred and twenty
miles dista at, 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, to 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. Lawrence. 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. To 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 difficulty.
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
98
Recapitulation.
of Great Britain, as the north-west angle of Nova Scotia and the boun-
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 to 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 Nova Scotia, provided the Gulf of
St. Lawrence is shown to be embraced by the term “Atlantic Ocean,"
Recapitulation.
99
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 those 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-
lautic 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.
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
Recapitulation.
missible, since 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-
last term 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 Fundy 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 must 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, several 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-
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-
limited in two different manners, by the different expressions united with
it, must in both sentences have the same meaning. In one clause 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 themselves into the
River St. Lawrence, so as to exclude only the last mentioned rivers from
Recapitulation.
101
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 the 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 having 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 demonstrated, that the southern 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
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 in England between
the years 1763 and 1783. The irrelevancy of the fact, that some leases
g*
102
Recapitulation.
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 hav.
ing rejected the proposal of making the St. John the boundary, should
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
the 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
of the country situated north of the River St. John and west of the due
north line.
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 has been shown that the claim of Massachusetts under her 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, the 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
is now contested, and far more valuable as to soil, climate, and situation.
Recapitulation.
103
Finally: it is conclusively 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 with the 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.
APPENDIX.
APPENDIX.
No. l.
Acts of Jurisdiction and opinions entertained subsequent to the
year 1783.
a
It is not perceived, how either any acts of jurisdiction exercised by
either party over the contested territory after the date of the treaty of
1783, or any opinions entertained subsequent to that time by officers of
either Government, or by any other individuals, can have any effect on
the terms of the treaty, or throw any light on the intentions of the Ne-
gotiators. Yet, as an appeal has been made to them on the part of
Great Britain, a review of both may not be altogether omitted.
Several documents have been adduced, on the part of Great Britain,
with a view to prove that, subsequent to the Treaty of 1783, the Govern.
ments of Canada and of New Brunswick have both exercised jurisdic-
tion over the contested territory. The irrelevancy of those relating to
the fief of Madawaska, which may have taken place since that time,
has already been shown. But it appears ; that in the year 1784, a na-
tive Indian was tried and convicted by a court of the Province of Que.
bec, and accordingly executed for a murder committed, as was suggest.
ed, on the waters of the River St. John; that between the years 1789
and 1791, twu suits were instituted and judgment obtained, before the
Courts of Quebec by some inhabitants of Canada against persons re-
siding on the River Madawaska; that an extract from a list of the
parishes in the Province of Quebec, taken from the minutes of the
Executive Council for 1791, includes that of Madawaska ; and that, in
the year 1785, that Council issued an order for opening a road, from
Kamarouska on the River St. Lawrence to Lake Temisquata, which
lies on the south-eastern side of the dividing highlands, claimed as their
boundary by the United States. It will be admitted that those acts
taken together afford sufficient proof of the desire and perhaps a hope
at that time, that the jurisdiction of the Province of Quebec might be
extended over the upper branches of the River St. John.
The following transactions throw a clearer light on the views both of
that Government and of that of New Brunswick.
108
Subsequent to 1783.
In the year 1787, Mr. Holland was ordered by the Governor of the
Province of Quebec, to proceed to the Great Falls on the River St.
John, in order to meet the Surveyor General of New Brunswick, and
munication between the two Provinces. In the interview which took
place between them, each party was able to prove, that the territory in
question was not within the limits of the other Province.
The surveyor of New Brunswick, in conformity with his instructions
from the Governor of that Province directing him to be governed by
the Quebec Act, insisted that those streams alone which fall into the
River St. Lawrence were in the Province of Quebec, and that those
which were tributary streams of the River St. John were in the Pro-
vince of New Brunswick. And he declared that he would proceed to
the height of land on the carrying place, situate between the River St.
Lawrence and Lake Temisquata, in order to examine which way the
waters incline on the heights there, that by their course he might be en-
abled to ascertain the boundary between the Provinces of Quebec and
New Brunswick.
On the other hand, although it could not be known with any certain-
ty, at that time, where the due north line from the source of the River
St. Croix would strike the Highlands, it was highly improbable that the
point of intersection would be found as far west as the Temiskouata
Portage. Mr. Holland, after urging some other considerations, accor-
dingly represented, “more especially, that the fixing that limit would
materially affect the boundary between us and the United States of Ameri-
ca; and that a large territory would thereby be saved, or lost to His
Majesty's dominions."
A safe and convenient communication between the two Provinces
was at all events to be preserved : and how to alter for that purpose the
boundary of the United States, as defined by the treaty of 1783, was the
difficulty. Mr. Holland appears to be entitled to the credit of having
been the first to propose the substitution of a “country extremely moun-
tainous," to the dividing Highlands designated by that treaty. He ob.
served that it was generally understood in Canada, “ that the line be-
tween the Provinces of Quebec and New Brunswick, should run from
the head of Chaleur Bay, along the Highlands, in a westerly direction
to the Great Falls on the St. John's River, and from thence west, to
the westernmost, or main branch of the Connecticut River.” .
Mr. Holland had not at that time, any knowledge of the country :
but he did not fail to find it agreeing precisely with his hypothesis. Not.
being able to agree with the Surveyor of New Brunswick, he proceeded,
.
extremely mountainous ; and, from information gathered from different
Acts of Jurisdiction.
109
persons, who have been from the St. John's River back in the country,
and my own observations, have no doubt but that these mountains are
the range which extend from the Bay of Chaleur to that River.”
This substitution, (called a definition) of a generally or extremely
“ mountainous country,” without regard to the division of certain speci-
fied rivers, to the “ Highlands which divide the rivers," &c. has the
singular advantage of rendering them moveable at will. And it cannot.
be doubted that, had the British Agent under the Ghent commission been
from Canada, instead of New Brunswick ; the mountainous country,
extending westwardly from the Great Falls, would have been pertina-
ciously contended for in behalf of Great Britain, instead of insisting, as
according to his hypothesis has been done, that the height of land, con-
templated by the framers of the treaty, commences at Mars Hill.
A committee of the Executive Council of the Province of Quebec,
appointed the same year, (1787) to consider that subject, appears not to
have sustained to its full extent Mr. Holland's report, and to have been
of opinion that, in order to extend the jurisdiction of Canada over the
River St. John, an alteration of its existing southern boundary was ab-
solutely necessary.
They say, “ If the Province of New Brunswick may of right claim
the sources of rivers that take their rise on the height of land which di-
vides the rivers that empty themselves into the St. Lawrence, from those
which fall into the Atlantic Ocean, the ancient limits of this Government
will be curtailed towards New Brunswick, and Seigneuries under Cana-
dian grants, as far back as the years 1623 and 1683, be taken into that
Province,” &c.
The committee then proposes that the Province of Quebec be sepa-
rated from that of New Brunswick, by a line running along the High-
lands, which extend from the head of Chaleurs Bay to the foot of the
Great Fall of St. John's River, and from thence, crossing the river, (so.
as to include the whole of the portage or carrying place) and continuing
in a straight line towards the sources of the River Chandiere, which
rise on the Highlands, which commence at the said head of the Bay of
Chaleurs, and extend all the way to the north-westernmost head of Con-
necticut River."
It is clear, that the committee of the Executive Council of the Pro-
vince of Quebec was quite sensible that the southern boundary of that
Province, as defined in the Commissions of its Governors, would cur-
tail the ancient limits of Canada, as it existed under the French Govern-
ment. What they propose is a substitution of Mr. Holland's hypotheti.
cal Highlands for those that had been designated by the Proclamation of.
1763, by the Quebec Act of 1774, by the treaty of 1783, and by all the
Commissions of the Governors of the Province, as its southern boun-
10
110
Subsequent to 1783.
dary. They ask accordingly that the Province of Quebec be separated
(hereafter) from the Province of New Brunswick by Mr. Holland's pre-
sumed Highlands.
The admission that the change could not be effected, without an al-
teration of the boundaries prescribed by the Acts of the British Govern-
ment, is tantamount to an acknowledgment that an alteration of the
terms of the treaty was necessary for that purpose ; since the same de-
scriptive words are used in those Acts and in the treaty.
The conflict between the two Provinces on that occasion, and the con-
fused arguments alleged on both sides, arose solely from their mutual
wish, to appropriate to themselves what belonged to another party, and
from the impossibility of reconciling the pretensions of either with, not
only the treaty of 1783, but all the public acts of Great Britain relating
to those boundaries.
Those documents, together with some others, were taken into con.
sideration by the Executive Council, on the 4th August, 1792. And it
was thereupon 6 Ordered that these papers be entered upon the minutes,
and it is humbly suggested by the board, that it may be expedient to
transmit copies to the Lieut. Governor of the Province of New Bruns-
wick for his co-operating in representations to call the attention of his
Majesty's Ministers to the adjustment of the limits necessary for pre-
serving the public tranquillity on the borders of both Provinces."
It is not known to the American Government, whether any decision
was had on that subject by that of Great Britain, or whether the aban-
donment of that pretension, on the part of the Province of Canada, was
the natural consequence of the favorable change which, in the year 1794,
took place in the relations between the two countriės. But the fact is
certain, that not a single subsequent act of jurisdiction over the con-
tested territory, by Canada, has been adduced in evidence, (as certainly
would have been done had any such existed,) or is known to have taken
place.
It is on the contrary in proof, that no grants of land have been made
by the British Government of Canada, on the waters of the River St.
John, or beyond the dividing highlands claimed as their boundary by
the United States. And it is also proved, by the concurrent testimony
of the inhabitants on the Madawaska River, that the Mount St. Francis,
which divides the waters at the Temiscouata Portage, has, for more than
thirty years, been considered as the boundary of Canada, and the place
beyond which no process issuing from that Province can be served.
Great Britain, on the plea of certain infractions of the treaty of 1783
alleged by her to have been committed on the part of the United States,
had suspended, on her part, the execution of those conditions of the
treaty, respecting boundaries, which had not been carried into effect im.
Acts of Jurisdiction.
111
mediately after its conclusion. It was only by virtue and in conse.
quence of the treaty of 1794, that she surrendered, and abandoned her
jurisdiction over several posts and countries, within the boundaries of
the United States, of which she had remained in possession ever since
the year 1783.
It is therefore probable, that during the state of suspension and doubt,
that existed with respect to the boundaries between the years 1783 and
1794, the Governor of Canada, who had certainly orders not to surren-
der the Western posts and territory, entertained the hope that the condi-
tions of the treaty would never be fulfilled, and thinking it a favorable
opportunity, made the attempt of extending his jurisdiction and actual
possession in another quarter. It is certain that from that time to this
day, the attempt has not been renewed by the Government of that Pro-
vince.
The grants of land to the Madawaska settlers, and the jurisdiction ex-
ercised over them, by the Government of New Brunswick, are no evi-
dence of there having been an intention prior to the treaty of Ghent, on
the part of that Government, to extend its jurisdiction over the contest-
ed territory.
The remote situation of an Acadian village, which, as laid down in
Bellin's and in Mitchell's Maps, was at first on an Eastern branch of
the River St. John, near the Lake Freneuse or Grand Lake, preserved
its inhabitants from being transported and dispersed with the rest of the
original, or French, inhabitants of Acadia. They appear subsequently,
to have had their village on the river, ten miles above the present site of
Fredericton : and they removed thence, upwards, towards the mouth of
the River Madawaska, when the British, after the treaty of 1783, extend-
ed their settlements up the River St. John. They had always resided
within the acknowledged boundaries of the British Province of Nova
Scotia, now New Brunswick; and had never before submitted to the
British Government.
The question respecting the true River St. Croix, was then undeci-
ded. It was impossible to know where the due North line from the
source of that river would intersect the highlands. Under the belief that
the Western branch of the Schoodic would be declared to be the true St.
Croix, and if placing reliance on Mitchell's longitudes, the due North
line would be supposed to pass West of the Madawaska Settlement.
An apology may be found in that circumstance, for the issuing of
those grants, and even for the jurisdiction exercised by New Brunswick,
so long as the due North line was not ascertained. It is only since the
actual survey of that line, in the year 1817, 1818, that the continued ex-
ercise of that jurisdiction must be considered, and has been complained
of, as an unjustifiable usurpation.
112
Subsequent to 1783.
It is proper further to observe, that the Government of New Bruns-
wick has, at no time, granted any lands in the contested territory, ex-
cept to those Acadians, nor to any persons whomsoever, from the year
No stress can be laid on the acts of either party subsequent to the
treaty of Ghent, in relation to the contested territory which from that
time became an avowed subject of discussion.
The grant of a tract of land in the year 1825, and the subsequent ar-
rest and trial of an American citizen, have afforded just grounds of com-
plaint. But it is remarkable, that those very acts afford an additional
proof of that inconsistency which naturally grows out of the British pre-
tension.
No act of the province of New Brunswick could make a place which
lay West, to be East of the due North line, nor therefore remove the dis-
trict occupied by the Madawaska settlers within the boundaries of the
Province.
The only thing which is decisively proved by those acts is, that in the
opinion of the New Brunswick authorities, the contested territory is not
within the boundaries of Canada. And they do not seem to have per-
ceived, that this was tantamount to an acknowledgment that it did belong
ed highlands, extending from Mars Hill to the North-westernmost
source of the Penobscot, are not the Southern boundary of that Pro-
vince.
And since the Southern boundary of Canada is identic with the North-
ern boundary of the United States, if that boundary is North of those
presumed highlands, the territory lying South of it, makes part of the
United States.
Of this the British Government seems at last to have become aware.
Hence the effort, with the aid of the fief of Madawaska, and of some
ancient attempts which have not been renewed for more than thirty
years, to substitute for the usurped jurisdiction of New Brunswick, a
pretended possession derived from Canada.
Accordingly, in the map of the British Possessions in North
America, compiled from documents in the Colonial Department,” and
ordered to be printed in June, 1827, by the House of Commons, the
due North line is made to terminate at the Ristigouche River; the
boundary line between the United States and Cauada is laid down,
according to the British pretension, from Mars Hill to the western
source of the Penobscot; and all that lies north of that boundary and
west of the due north line, including the Madawaska Settlement, is
made part of Canada and not of New Brunswick.
But, whilst trying to avoid the inconsistency growing out of the
Acts of Jurisdiction.
113
usurped jurisdiction of New Brunswick, the Colonial Department was,
from the nature of the British pretension, necessarily drawn into another.
It is in proof that the western and northern boundaries of New
Brunswick, and the southern boundary of Canada have not been alter-
ed since the treaty of 1783 ; that the legal north-west angle of New
Brunswick is identic with the north-west angle of Nova Scotia, estab-
lished in the year 1763, and referred to and defined in the treaty of
1783; and that that angle is accordingly at the point of intersection of
the due north line with the Highlands designated by the treaty and
forming the southern boundary of Canada.
Instead of being on any highland, the north-west angle of New Bruns-
wick is, in the map in question, placed in the bed of the River Risti.
gouche. And, forgetting that, by the treaty, the summit of the north-
west angle of Nova Scotia was also the summit of the north-
east angle of the United States, the Colonial Department has placed that
north-east angle at Mars Hill, fifty miles south of the point where it
places the north-west angle of New Brunswick or Nova Scotia. Mars
Hill, the pretended north-east angle of the United States, so far fron,
being the north-west, is not even one of the angles of New Brunswick,
but only a point on one of its boundary lines.
The same contradiction attaches to the legitimate acts of New Bruns.
wick, in reference to the territory within its acknowledged boundaries.
The jurisdiction of the Province has uniformly been exercised as far
north as the Ristigouche ; and its practical north-west angle, placed as
far north of the pretended north-east angle of the United States, as in
the map of the Colonial department.
It has been asserted in the British Statement, that the right to the
possession of the contested territory, was first called in question by the
United States, and that only constructively, at the period of the negotia-
tions ot Ghent, in 1814.
The right of Great Britain to the territory, had never been called in
question, by the United States, before the negotiations at Ghent, in
1814, because it was then, for the first time, made known to them that
Great Britain intended to set up such a claim. And her right to the
possession of the Madawaska Settlement was not called in question, or
even alluded to at Ghent, because it had not been ascertained at that
time, whether that settlement lay east or west of the line drawn due
north from the source of the St. Croix.
That line was not surveyed till the years 1817–1818: and this is
also the reason why the inhabitants of Madawaska were included in the
American Census of the year 1820, and not in that of the year 1810.
The remoteness of the territory on the waters of the River St. John
from the American Settlements, which did not extend far up the Penob-
10*
114
Subsequent to 1783.
scot, had rendered other acts of jurisdiction, on the part of the United
States, unnecessary, prior to the war, which was terminated by the
Treaty of Ghent. And their subsequent forbearance, since that ques-
usurpation of New Brunswick over the contested territory, is very im.
session, by Great Britain.
On the question of right, it was not even suspected, that there did, or
could, exist any doubt. The boundary is laid down in all the maps of
the District, now State of Maine, along the true highlands designated
by the treaty. There was no hesitation or doubt on the subject, on the
part of Massachusetts. She granted lands, as a matter of course, in
that as well as in every other part of her territory.
As early as the year 1792, a contract was entered into, between the
State and certain individuals, for the sale of a tract of land containing
more than two millions of acres, and extending to the very highlands in
question. Although the conditions of the agreement were not fulfilled
by the purchasers and it was not ultimately carried into effect, this tract
or another substituted for it, appears to have been surveyed. (a) Actual
grants of land were afterwards made by the State, and as late as the
year 1813, to various academies, towns, and individuals.
The obscure acts by which Canada had, during the years 1784-1794,
attempted to extend her jurisdiction over the upper waters of the
River St. John, and the application by the council of that Province, for
an alteration of its boundaries, had remained of course entirely un-
known to the Government of the United States. And it was at Ghent,
in the year 1814, that any pretension to the contested territory was, for
the first time, suggested by the Government of Great Britain. If any
further proof was wanted to establish that fact, it will be found in the
manner in which that claim was brought forward in the course of those
negotiations.
From all that precedes, it appears that the easy access from the settle-
ments of New Brunswick to that of Madawaska, enabled the government
of that Province to extend its jurisdiction over that settlement, at a time
when it might have been presumed that it would be found to lie east of
the yet unascertained due north line, and be therefore included within
the acknowledged boundaries of the Province. New Brunswick con-
tinued in the undisturbed possession during more than twenty-five
years, till 1817, when the due north line was surveyed. If under those
circumstances, Great Britain might be allowed to continue in posses-
sion, although the Madawaska Settlement was clearly without the boun-
(a) That survey is most incorrectly delineated on Greenleafs’ Map of Maine.
Opinions Entertained.
115
daries of New Brunswick, and made part of the contested territory ; the
claim to preserve the possession thus acquired, till the difference be-
tween the two Powers was settled, could not, under any view of the case,
be extended beyond that which was then in actual possession. The
acts of jurisdiction, on the part of the New Brunswick authorities over
any other part of the contested territory, exercised also beyond the ac-
knowledged western boundary of the Province, are acts of ursurpation,
eminently calculated to produce irritation and collisions ; and they have
endangered those friendly relations subsisting between the two counties,
which every man of sense in both is most anxious to preserve. It is
hardly necessary to add, that possession thus obtained and continued,
· cannot, in the slightest degree, affect the rights of the United States
The opinions expressed by public officers and individuals during the
period which elapsed between the Treaty of 1783 and that of Gheut,
will now be stated as far as they are known.
Great stress has been laid, on the part of Great Britain, on the ex-
pressions used concerning the highlauds contemplated by the Treaty of
1783, by Mr. Sullivarı, the Agent of the United States before the com.
mission for determining the true River St. Croix.
That gentleman did, indeed, deny that the boundary prescribed by the
Proclamation of 1763, could have had any influence on the minds of
the commissioners in 1783 ; and that this opinion was incorrect, has,
it is believed, been sufficiently proved in the preceding pages. What
he said on the subject of the highlands is as follows :
“It was found at a very early period that the rivers flowed from the
southward into the River St. Lawrence, and from the porthward into
the Atlantic Ocean. This raised a reasonable conjecture that there
was a ridge of highlands which divided those rivers from each other,
&c."
6 We have come then clearly to this point, that the north-west angle
of Nova Scotia is to be found by running a line due north from the
source of the St. Croix River to the highlands to a point or a place,
where that line shall intersect a line along the highlands, which divide
the rivers as before mentioned, and run to the north-westernmost head
of Connecticut River. . . . . . . . . . . The highlands
had, in the year 1763, been made the boundary of Quebec, or the Low-
er Canada boundary, but where the boundaries or highlands are, is yet
resting on the wing of imagination. . . . . . . . . . . .
We are as entire strangers to the highlands, and the sources of the
rivers on either side of them, as we are to the sources of the Nile.
T
116
Subsequent to 1783.
There can be no doubt that the north-west angle of Nova Scotia is yet
to be formed, and that is to be done by forming the north-east angle of
the State of Massachusetts. To do this it has become necessary to
find the river which was truly meant and intended by the commission-
ers who describe the bounds, to find the source of that river, and to draw
a line due north from thence. But even this cannot decide where the
north-west angle is, because the Board has no authority to fix the line,
which is to be intersected in order to form the angle, or the point of
inclination of the two. The question resulting from the Treaty in re-
gard to the line upon the highlands is reserved to a future period. This
Board has no concern in it as to its principles or consequences, and
the point of locality of the north-west angle is to be the investigation of
the next century.”
Some further explanation of the conception entertained by Mr. Sulli-
van of the character of the highlands, will be given in the sequel. It is
sufficient here to refer to the map annexed to his History of Maine,
published in 1795, in order to show, that he had no doubt respecting the
position of the dividing highlands, nor as to the fact that in order to
reach them the due north line must cross the River St. John. That
this was also at that time the opinion of Mr. Chipman, the British
Agent before the same commission, and also what his views were re-
specting the north-west angle of Nova Scotia and concerning the coin-
cidence of the former boundaries, with those established by the Treaty
of 1783, will appear from the following extracts of his argument before
the said Commission in the year 1798:
“ The limits of the Province of Nova Scotia, at the time of the
Treaty of Peace, were the same that were established when the province
was anciently and originally erected and named, in every respect, ex.
cepting the said Island of St. John and the northern boundary line,
which, by the erection of the Province of Quebec, after the peace of
1763, was altered from the southern bank of the River St. Lawrence to
the highlands described in the article of the Treaty of peace.”
“If it can be shown that the river Scoodiac, so called by the Indians,
is this River St. Croix, and that a line along the middle of it to its
source, together with a line due north from its source, formed a part
of the western boundaries of the Province of Nova Scotia, and that
the highlands formed the northern boundary lines of this Province, at the
time the Treaty of peace was made, so as to form the north-west angle
of Nova Scotia, by these western and northern boundaries, the intention
of the Treaty of Peace is at once ascertained in the great point in con-
troversy.
66 The Province of Quebec was created and established by the Royal
Proclamation of the 7th October, in that year, and bounded on the south
Opinions Entertained.
117
· by the Highlands which divide the rivers that empty themselves into the
River St. Lawrence from those which fall into the Sea or Atlantic Ocean,
thereby altering the north boundary of the Province of Nova Scotia
from the southern shore of the River St. Lawrence to those Highlands."
“ It is sufficient here to observe, that at the time the Treaty of Peace
was made in 1783, the Provinces of Quebec and Nova Scotia belonged
to and were in the possession of the Crown of Great Britain ; and that
His Britannic Majesty, at that time, had an undoubted right to cede
to the United States of America such part of these Territories as he
might think fit; and that in making the cession of the territory com-
prised within the boundaries of the United States, as described in the se.
cond article of the treaty of peace, his Majesty must be supposed to have
used the terms describing these boundaries in the sense in which they
had been uniformly understood in the British nation, and recognised
in public documents and acts of government. In this sense, and in
no other, could they have been then understood, or can they now be
claimed or insisted upon by the United States. In this sense, and in
no other, is his Majesty bound to give the possession.”
“But to apply these facts to the point more immediately under conside-
ration-whether a line due north from the source of the western or main
branch of the River Scoodiac or St. Croix, will leave to each of the par-
ties to the treaty the source of those rivers that empty themselves or
whose mouths are within its territories upon the sea-coast respectively.
6 The effect, so far as regards the United States, is completely secured
by the treaty in all events; and thence we have further reason to suppose
it was intended to be reciprocal in this respect, if a just interpretation
will warrant it. A line due north from a source of the western or main
branch of the Scoodiac or St. Croix, will fully secure this effect to the
United States in every instance, and also to Great Britain in all instan-
ces except in that of the River St. John, wherein it becomes impossible,
by reason that the source of this river is to the westward, not only of the
western boundary line of Nova Scotia, but of the sources of the Penob-
scot, and even of the Kennebec, so that this north line must of necessity
cross the River St. John ; but it will cross it in a part of it almost at the
foot of the Highlands, and when it ceases to be navigable. But if a
north line is traced from the source of the Cheputnatecook, it will not
only cross the River St. John within about fifty miles from Fredricton,
the Metropolis of New Brunswick, but will cut off the sources of the
rivers which fall into the Bay of Chaleurs."
“In most, if not all, the maps of the interior country, published be-
fore the year 1783, although the courses of the River St. Croix are very
inaccurately laid down, still it is very uniformly made to terminate in a
lake near the eastern branch of the River Penobscot; and a line drawn
11
118
Subsequent to 1783.
north from that termination upon those maps will not intersect any of
the rivers which empty themselves into the sea, to the eastward of the
mouth of the River St. Croix, except the River St. John."
“As then, at the treaty of peace in 1793, the northern limit of the
Province of Nova Scotia was “a line along the Highlands which di-
vide the rivers that empty themselves into the River St. Lawrence from
those which fall into the sea,” it unquestionably follows that the north-
west angle of Nova Scotia at the time of the treaty of peace in 1783 was
that angle which was formed by a line drawn due north from the source
of the River St. Croix to those Highlands. If we now compare this an-
gle with the north-west angle of Nova Scotia described in the treaty of
peace, viz : that angle which is formed by a line drawn due north from
the source of St. Croix River to the same Highlands, can it be said,
with any degree of propriety, that “the limits and boundaries of the
Province of Nova Scotia were unknown at the time of the treaty of
peace in 1783, and that it therefore became necessary to give it a western
boundary by the treaty itself, in these words, to wit: that angle which is
formed by a line due north from the source of the River St. Croix to the
Highlands?
66 Can it be believed, or for a moment imagined, that, in the course of
human events, so exact a coincidence could have happened between the
actual, real boundaries of the Province of Nova Scotia, and the bounda-
ries of it described in this treaty, if the latter had not been dictated and
regulated by the former ?
“Can any man hesitate to say, he is convinced that the Commission.
ers at Paris, in 1783, in forming the 2d article of the Treaty of Peace,
in which they have so exactly described this North-west Angle, had re.
ference and were governed by the boundaries of Nova Scotia, as de-
scribed in the grant to Sir William Alexander, and the subsequent alter-
ation in the Northern Boundary by the erection of the Province of
Quebec ?"
6 The argument of the Agent of the United States would certainly
apply with much greater force in proving the Penobscot to be the River
agreed to; as this river, besides being once known indiscriminately with
the other rivers by the name of St. Croix, has been the reputed boundary
of Nova Scotia, and was contented for as such by the British Commissa-
ries at Paris, in the year 1750, in their memorials concerning the limits
of Acadia or Nova Scotia.”
A further proof of the understanding had at that time of the ne-
cessity that the St. John must be crossed by the due north line in order
to reach the highlands, is found in the following proceedings under the
same commission.
Its object was to decide which was the River St. Croix contemplated
Opinions Entertained.
119
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
coutended 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 Scoodiac
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 obtaiued, 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:
66 It appears to me evident that the adoption of 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 wouid 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 its
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 line 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,
120
Subsequent to 1783.
who concluded the provisional treaty of peace 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 Secretary 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 claiın.
Several years subsequent to the proceedings of the commission of
1793, Mr. Sullivan was requested by the Department of State to commu-
nicate his ideas on the yet unsettled question of the islands in the Bav
of Passamaquoddy, 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: (b)
"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 River St. Lawrence from those which fall into
the Atlantic Ocean, to the north-westernmost head of Connecticut
River."
6 You will see by the maps of that part of the country, that the line
which runs north from the source of the St. Croix crosses the River St.
John a great way south of any place which could be supposed to be the
Highlands; but where that line will come to the north-west angle of
Nova Scotia, and find its termination, is not easy 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-
(b) 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.
Opinions Entertained.
121
ci
count I have had from the natives, and others, that there are no moun-
tains or highlands on the southerly side of the 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 feet above the level of the sea, in perpendicular height, being a mo.
rass 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 effective.
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 monaments, erected
at certain distances from each other ; the points of compass from the
one to the other may be 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.”
6 In the description of the morass, which is said to crown the heights
between the United States and Lower Canada, it ought to 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 M. 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)
6 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 line which is to run from the source of the St. Croix,
and which is represented as necessary to guard against interfering or
eucroaching grants under American and British authorities. As the
(c) Confidential documents as above.
11
122
Subsequent to 1783.
course of this line is to be due north, and is to proceed from á point
fixed by a survey already made, the running of it will be sufficiently
provided for by an appointment of a commissioner by each of the“two
governments, and an appointment by the two commissioners of å súr.
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 difficulty
arises from a reference of the treaty of 1783, “ to the highlands,” which
it is now found have no definite existence. To cure this difficulty, no
better expedient occurs than to provide for the appointment of a third
commissioner, as in Article V. of the Treaty of 1794, and to authorize
the three to determine on a point most proper to be substituted for the
description in Article II. of the Treaty of 1783, having due regard to
the general idea that the line ought to terminate on the elevated ground
dividing the rivers falling into the Atlantic from those emptying them ,
selves into the St. Lawrence. The commissioners may also be autho.
rized to substitute for the description of the boundary between the point
so fixed and the north-western most head of Connecticut River, namely,
a line drawn 6 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 and accurate execution
hereafter, and as will 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 error consisted in confounding the term
“ highlands,” the technical meaning of which has been fully explained,
with “chain of mountains.”
Mr. Madison, whilst he repeats after Mr. Sullivan, that the highlands
have no definite existence, by which he means that the highlands are
not mountains, saw very clearly, that the due north line ought to termi-
nate on the elevated ground dividing the rivers falling into the Atlantic
from those emptying themselves into the St. Lawrence. And in order
to obviate the suggested difficulty in surveying the boundary along the
highlands, he proposes a reference 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 was not
practicable : and Mr. King concluded on the 12th May, 1803, a conven-
VI
Opinions Entertained.
123
tion with Lord Hawkesbury, which provides for an actual survey of the
boundary; as appears by the following articles of the same:
: 6 Art. II. Whereas, it has become expedient that the north-west angle
of Nova Scotia, mentioned and described in the treaty of peace between
his Majesty and the United States, should be ascertained and determin-
ed, and that the line between 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 following
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 each 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.”
5 Art. III. It is further agreed, that the said commissioners, after
they shall 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-westernmost head of
Connecticut River, according to the provisions of the aforesaid treaty
of peace, and likewise to cause 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 provisions 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 was added explanatory of that which provided for the
settlement of the north-western boundary between the two Powers.
This having been refused by Great Britain, the Convention was not
carried into effect. Another similar and unsuccessful attempt was made
in 1807 by Mr. Monroe then Minister of the United States at London.
The subject was at last disposed of on the same principle in the year
1914 by the Treaty of Ghent. But the propositions discussed during
the course of the negotiation deserve consideration.
The British Plenipotentiaries at that time, when explaining what they
meant by a revision of the frontiers generally, and after saying that Great
124
Subsequent to 1783.
Britain did not desire it with any view to the acquisition of territory, as
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 of 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 more 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 was 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 effect; 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-
ernment, 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.
Even 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 no 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 that 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 they 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 s 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
a cession by the United States to Great Britain of all that portion of the
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 Brunswick 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 whole line of frontier, from
the source of the River St. Croix, to the Lake of the Woods. And tho
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-
ing expressly provided that the boundary should be ascertained and sur-
veyed in conformity with the provisions of the treaty of 1783.
Thus 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 State 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, whether a demand made, on a most solemn oc-
casion, by the British Government 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 over the shores secured to the United States by the same treaty ; .
whether such demand, under such circumstances, was not a most expli-
cit acknowledgment of the previous undoubted right of the United States
to that territory, and does not decisively refute the late assertions of an
exclusive and undisturbed possession by Great Britain, and of a con-
structive claim but lately advanced by America.
• An allusion has been made, in the British Statement, to a letter writ-
ten by one of the American Plenipotentiaries to his Government, the
day subsequent to the signature of the treaty. Every thing contained
in a letter of that description is wholly irrelevant to the question; since
a minister, when writing to, does not act as the organ of his Gov-
ernment. It might be sufficient to observe, that it has been fully de-
monstrated, by the very document to which he appealed, that the Ame-
rican Plenipotentiary was altogether inistaken in supposing that the con-
11*
126
Subsequent to 1783.
tested territory was not within the boundaries of the State of Massachu-
setts ; and secondly, that if the boundary lines designated by the previous
public acts of Great Britain, and adopted by the treaty of 1783, had
embraced any portion of territory not included within the chartered li-
mits of Massachusetts' Bay, such portion would nevertheless have belong-
ed to the United States.
But, as the allusion is made to the writer of this essay, he will ask the
permission, though a matter purely personal and irrelevant to any ques.
tion at issue, to state the cause of his mistake.
In the year 1810, whilst Secretary of the Treasury, he had in charge
a compilation of the laws and other public documents respecting the pub-
lic lands. To this he prefixed an introduction explanatory of the title
of the United States to the public lands, as derived from treaties and
from the cessions of the individual States; and a note is appended to
that introduction (Page xiv,) in the following words, viz : (d)
66 The title of the State of Massachusetts to the territory north of the
old province of Maine, between New Hampshire and the river Kenne-
bec, is not understood. The northern boundary of that province is by
the charter of 1691 fixed at 120 miles from the sea, and no subsequent
document has been seen, extending the province to the northern boun-
dary of the United States. Thence it would seem that the territory
west of Kennebec and north of the boundary established by the charter,
vested by the treaty of peace in the United States and not in the State of
Massachusetts. The same observation applies to a small tract in the
possession of New Hampshire, lying north of the 45th degree of north
latitude; that parallel appearing to have been the northern boundary of
the province whilst under the British government.”
In the year 1814, and at Ghent, that individual had not before him
the charter of Massachusetts, but recollected that there was a certain por-
tion of territory not included within the limits designated by that char.
ter, though within the boundaries established by the treaty of 1783. He
confounded that tract which lies west of the Kennebec with the territory
east of the Penobscot, and alluded also erroneously to the 45th parallel
of latitude which is the northern boundary of New Hampshire, as being
that of Massachusetts.
(a) That note is also transcribed in Colvin's edition of the laws and other public
documents of the United States. Vol. I. Page 454.
New Suggestion.
127
No. II.
Notes on an essay in the Westminster Review for June, 1840, signed
C. B.
The anonymous author of this essay is entitled to praise for his
candour and liberal spirit, as regards the general relations between the
two countries. But neither liberality, knowledge, or talent can perform
impossibilities. The writer could not persuade himself to abandon the
pretensions advanced by former British Agents and unfortunately sus-
tained by his Government. He repudiates all their arguments but one,
and yet cannot help contradicting himself. The case was desperate,
and he has suggested a novel but most extraordinary remedy.
He commences the recapitulation of his reasonings in the following
words, viz :
66 The boundary lines of the treaty of 1783 were not new lines, but
the old acknowledged though unascertained lines assigned by the procla-
mation of 1763, the act of 1774, and the various commissions of the
Governors of the two Provinces of Quebec and Nova Scotia."
“ The only significant difference between the terms in which the
boundaries are described in the preceding documents, and those which
are used in the treaty, is that of the substitution of · Atlantic Ocean'
for - Sea. As the term “Atlantic Ocean’ is always in the treaty and
in the commissions of the Governors used in a restricted sense, never
as comprehending the Bay of Fundy and Gulf of St. Lawrence, but
frequently in contradistinction to them ; the deliberate substitution of it for
the more general term the Sea,' must lead to the inference that that
change of this single term was meant to mark that the water courses
divided by the highlands were those of what we have called the St. Law-
rence and Atlantic basins.”
Now, if that significant difference, if that deliberate substitution of
the term “ Atlantic Ocean” for that of - Sea” has caused such an
alteration as to exclude the St. John and Ristigouche basins from the
water courses divided by the Highlands; it is very clear that the boun-
dary lines of the treaty of 1783 were not the old acknowledged lines
assigned by the former Acts of the British Government. And if the
substitution of a new for the old term has caused no such alteration, the
term “Atlantic Ocean” in the treaty is synonymous with the term
“ Sea" used in the Proclamation.
If no alteration was made by the change of the term and the bounda.
ries remain the same, no argument can be deduced from that change, to
prove that the term “Atlantic Ocean ”must, in the clause of the treaty
128
New Suggestion.
which relates to the division of rivers, be taken in a restricted sense
other than is expressed in the clause itself.
If such important alteration was made by the change of the term and
the boundaries are no longer the same, the author of the essay cannot
appeal to the proclamation and particularly to the mention made in it of
the Bay des Chaleurs, for the purpose of explaining the terms of the
treaty.
The only arguments of the former British Agents which the writer of
the essay seems to have preserved, are those adduced in order to prove
that the term “ Atlantic Ocean," in the clause of the treaty which relates
to the division of rivers, must be so construed as to exclude the St.
John and the Ristigouche from the Atlantic rivers contemplated by the
treaty. It is not necessary to state again here at large the arguments
and the illustrations adduced in the preceding pages in order to refute
that interpretation of the clause in question. One only of the illustra-
tions and one of the arguments will be repeated.
Subsequent to the Treaty of 1783, it appears that the words “ Atlan-
tic Ocean” were substituted for the word “ Sea," in the commissions
of the governors of the Province of Quebec. On the 27th of April of
the year 1786, Sir Guy Carleton was appointed Governor of New
Brunswick. The Province is in the commission declared to be bound-
ed, to the eastward by the Bay des Chaleurs and the Gulf of St. Law-
rence, to the south by the Isthmus and by the Bay of Fundy, on the
westward by the River St. Croix to its source, and by a line drawn due
north from thence to the southern boundary of the Province of Quebec,
and to the northward by the said boundary as far as the western extremity
of the Bay des Chaleurs. In that commission the Atlantic Ocean is not
mentioned, and the Gulf of St. Lawrence, the Bay des Chaleurs and the
Bay of Fundy are each designated by their specific names. But the
southern boundary of the Province of Quebec, was declared to be the
northern boundary of the Province of New Brunswick. In a commis-
sion to Sir Guy Carleton as Governor of the Province of Quebec, dated
the 22d of April of the same year, the southern boundary of the Pro-
vince is defined to be “a line from the Bay of Chaleurs along the high-
lands which divide the 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,” &c. Every river without ex.
ception, which has its source in, or flows through New Brunswick, falls
either into Bay des Chaleurs, the Gulf of St. Lawrence, or the Bay of
Fundy. All the rivers therefore contemplated in the description of the
northern boundary of New Brunswick, which is identic with the corres-
ponding portion of the southern boundary of the Province of Quebec, as
falling into the Atlantic Ocean, do actually fall into one of those three
New Suggestion.
129
inlets specifically designated by their distinct names in the commission
for New Brunswick. The term “ Atlantic Ocean” embraces, and em-
braces nothing else but those three inlets.
The object of the treaty was to define the boundaries of the United
States, and not those between the Provinces of Quebec and Nova Scotia.
It was foreign to the purpose of the treaty to describe the north-west
angle of Nova Scotia, one side of which is formed by the last men-
tioned boundary. The reference in the treaty to that angle is necessari-
ly to an angle formerly prescribed by the public acts of Great Britain,
viz: the Proclamation and the Quebec Act. The United States have
thence deduced one of the most conclusive proofs of the identity of the
boundary defined in the Treaty with that prescribed by the Proclamation
of 1763 and by the Act of 1774 without any change or alteration, of the
consequent synonymy of the terms Atlantic Ocean and Sea, and of the
necessary conclusion that the St. John, and the Ristigouche are to be
taken in the Treaty, as they were in the Proclamation, as rivers falling
into the Atlantic Ocean.
If it could be admitted that the term “ Atlantic Ocean” was to be taken
in the clause which relates to the division of rivers, in the restricted
sense ascribed to it on the part of Great Britain, it has always appeared
to the United States that the necessary inference was an impossibility
to carry the Treaty into effect. For in that case, it was utterly impos.
sible that any boundary line could be run from the due north line towards
the sources of the Chandiere, that could fulfil the absolute condition of
dividing certain specified rivers, imposed on that portion of the boun-
dary by the express terms of the Treaty. And from that necessary con-
sequence, combined with the knowledge which the negotiators of the
Treaty had of the topography of the country, the conclusion, irresistible
as it is believed, has been drawn, of the absurdity of supposing that they
could have ascribed to the term “ Atlantic Ocean” the restricted sense
above mentioned.
It is in order to get rid of that apparently insurmountable difficulty,
that the author of the essay has resorted to the singular but novel expe-
dient of substituting for a boundary line, a district of country containing
more than seven millions of acres, and embracing what he properly calls
the St. John and Ristigouche basins. The only reason given in sup-
port of that interpretation of the treaty is the admitted fact that with the
restricted sense ascribed to the term Atlantic Ocean, it is impossible, to
draw a boundary line, that will fulfil the conditions of the treaty. For
the author was misinformed when he adduces as another reason, that
the names of height of land (or highlands) seem to have been often ap-
plied to the whole territory in question, and that it would have been in
130
New Suggestion.
accordance with the language in which it was commonly spoken of for
the negotiators to designate it as the highlands.
Having assumed the principle that the dividiug highlands of the treaty
must be the whole highland country (as he calls it) extending over the
disputed territory ; the author admits that the treaty is not sufficiently
explicit to determine the position or course of the boundary line, and re-
sorts to the description of the boundary in the proclamation and in the
Quebec Act.
It has already been observed, that it is only by withdrawing his objec.
tion to the American line, derived from the substitution of the words At-
lantic Ocean for the word Sea, and by acknowledging the complete iden-
tity of the treaty highlands with those of the proclamation, that the author
of the essay can have a right to appeal to the proclamation and to the
Quebec Act for the purpose of explaining the treaty. There is another
apparent difference between the treaty and those two instruments. In
the treaty it is declared that the boundary shall be along the dividing
highlands and not that the boundary shall be, as in the proclamation
and in the Quebec Act, a line along the dividing highlands. Yet, I do
not believe that the author, when alluding to that circumstance, intended
to rest his argument on that nice distinction, on the omission of the
word line in the description in the treaty of that part of the boundary ;
and to say, that, if the framers of the treaty had called that part of the
boundary a line, he could not have assumed that, by the boundary pre-
scribed by them they meant a large tract of country and not a line.
It is proper here to observe, that the boundary along the highlands
could not be a mathematical line. There is always a certain distance
between the sources of the rivers flowing in different directions. The
ground, or highlands, which divide those sources always has some and a
varying breadth, which leaves some latitude respecting the actual position
of the line ultimately to be drawn between those sources, and required
therefore that the line should be ascertained and surveyed by the com-
mon act of the parties. The same observation applies to the case when
a river or a lake is made the boundary. Although the line is then partly
determined by the word “middle;" even what is meant by that word,
the selection of the dividing channel and the division of the islands, re-
mains to be settled by the common act of the parties. The provision
in the Treaty of Ghent applied to the whole boundary from the source of
the River St. Croix to the north-westernmost extremity of the Lake of
the Woods ; and it was expressed in the same terms in reference to
every part of the whole boundary. The object has been effected with
respect to the River St. Lawrence, to the lakes, and to the water commu-
nications between the lakes, though the division of many valuable islands
must have been attended with considerable difficulty. In proposing that
New Suggestión.
131
article 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.
$6 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 left 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 the 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 one 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 several 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
132
New Suggestion.
S
angle of New 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 dividing high-
lands in order to strike the western extremity of the Bay of Chaleurs,
had been supposed to be near the sources of the Ristigouche. And as
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 the treaty 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 Chandiere 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, the 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 difficulty 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 boundary
and a cession of territory, for which an equivalent might have been ask.
.
New Suggestion.
133
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 Great 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.
diere, 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, in 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 word “highlands” used alone has 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, been
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 the 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
exception, 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
134
New 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 line 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 Nova Scotia, embra-
cing of course the north-west angle of that Province and the boundary
with Canada, unsettled 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 sufficient 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 the 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 his 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 the 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 difficult to select any Power acceptable to
New Suggestion.
135
both parties who, from their relative geographical situation, and political
position, has not a greater interest 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 1733.
If upon a view of the whole case, the arbiter thinking, as the author
of the essay does, that neither of the two lines, heretofore claimed by
the two parties respectively, fulfils the conditions of the treaty; and be-
lieving, as appears to me indubitable, that if the American line does
not, no other possible line can divide the specified rivers, he must ne-
cessarily decide that the treaty cannot be executed : and, in that case,
the two Powers would be left 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 Chandiere, it
will be in conformity with the provisions of the treaty, and therefore
that, out of the infinite number of lines which may be thus drawn, the
Arbiter may select any one he pleases under the authority given to him
to decide according to the provisions of the treaty.
In that 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
provisions of the treaty, without determining, previously 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 basins
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
insists 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 any regard 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
136
Report of Messrs.
manner, it is not for me to say: nor do I know how far the govern
ment of Great Britain may countenance 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 in 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 the limits of that territory,
which he might deem proper to designate, would be the boundary line
according to the terms of the treaty. Ou 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 as modified
by the late English Commissioners; whether Highlands which, for three-
fifths of the distance, divide the waters of the Penobscot 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 States ;
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 rivers” implies a mountainous
ground having peaks or visible elevations.
As applicable to both lines; whether the Negotiators had a know-
ledge of the topography of the country, sufficient to enable them to de-
scribe with precision, in reference to rivers, any boundary they intend-
ed to prescribe.
The report of the late British Commissioners is silent on the two
first, and throws no additional light on the two last questions. The first
part and the latter portion of the second part treat only of points of sub-
ordinate importance. Though rejecting one of the positions assumed
Featherstonhaugh and Mudge.
137
by iheir 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 as one concerning which they have made a great discovery.
By the charter of 1791, the territory called Acadia or Nova Scotia,
and all that tract of land lying between the said territories of Nova
Scotia and the said Province of Main, (meaning the ancient Province
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.
ment after its cession to Great Britain by the treaty of Utrecht; that
it was afterwards questioned by the British Government, whether the
tract of country lying between Nova Scotia and Kennebec was not also
taken from Massachusetts’ Bay by the operation of the treaties 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 Crown,
the British Cabinet did not consider the question as definitively settled
as late as the years 1763-1770 ; but that the question respecting the
validity of a charter could 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 the
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 treaty of Ryswick, as understood by the
British Government subsequent to that treaty. The following passage:
occurs in the first American Statement laid before the King of the
Netherlands :
66. Great Britain, however, agreed by the Treaty of Ryswick of 20th
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-
ritory to Massachusetts, was virtually repealed, and became a nullity.
138
Report of Messrs.
titution, will be found in the following sentence of a letter from the Lords
of the Board of Trade, dated 30th October, 1700, to the Earl of Bella.
mont, the Governor of Massachusetts, viz : “ as to the boundaries, we
have always insisted, and shall insist upon the English right as far 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 in 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
has added 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
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 entirely 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 1782 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
Featherstonhaugh and Mudge.
. 139
to it in the Charter, the boundarias of which are determined by the
charter itself and no where else. The grant had been quoted for the
purpose of showing the chain 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 limits of Massachu-
setts, are wholly irrelevant.
It is remarkable that the charter of Massachusetts should have been
quoted in the report in 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.
.6 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 intended northern and eastern boundaries of the territo-
ries east of the Kennebec annexed to the Colony. Referring to the
Introduction to this argument for the clauses at large, that now al.
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 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.”
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 “ Sagadahock” 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 annexed by the charter to Massachusetts' Bay were,
Acadia or Nova Scotia and the tract of land lying between it and the
Province of Main : (or in other words, 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
140
Report of Messrs.
northward and eastward to the Gulf of 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 was without its boundaries. This is, in fact, what the commission.
ers contend for. On that they principally rely and announce some im-
portant discoveries made 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 charter; 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 hereinafter 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 line 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, communicated 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 Septentrionem 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 Septentrionem, 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.
Featherstonhaugh and Mudge.
.
141
My business is with the reasoning of the report ; and the reason assign-
ed 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-
tiali linea, 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 Septentrionem with the words ad occidentem of 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 Equator, 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.
Under the broadest legitimate construction, 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 ira
substituting the word North for towards the North : first, instead of
nearest is also wrong, though in fact it has the same meaning ; but Bay,
as a translation of navium Statio is admissible, since Bay of Fundy,
with the adjunct great, and St. Mary's Bay, are both designated in the
Grant as navium 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 littorales, by the words by the gulf shores" in-
stead of 6 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.
142
Report of Messrs.
In order to show how the western boundary of the Grant to Sir Wil-
liam 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 time, 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-
mins : 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 that the above quoted American trans-
lation is an official one, being appended to a document communicated
by the President of the United States in January, 1838, to the House of
Representatives. And the Commissioners in their recapitulation say :
“XVI. It appears that in the discussions which have been hitherto
6 had on the subject of the Grant of Nova Scotia in 1621, reference has
Galways been had to an American translation of that Grant which was
66 defective; and that all the omissions and inaccuracies in that defective
6 translation singularly coneur to obscure the nature of the claim which
6 Her Majesty's Government is interested to maintain.”
The only Agents ever employed by the Government of the United
States, in the discussions with that of Great Britain, concerning the
north-eastern boundary, have been Mr. Bradley, under the Ghent Com-
mission, and Albert Gallatin and William P. Preble, to prepare the
Statements of the case laid before the King of the Netherlands.
A passage already mentioned in page 15 of the first of those State-
ments has been quoted in the report of the commissioners (page15.)
Had those gentlemen only turned the leaf of the American Statement,
they would have seen (page 12) the translation of the Grant used by
the two last mentioned American Agents, viz:
66 Beginning at Cape Sable, in 430 north latitude, or thereabout, ex.
tending thence westwardly along the Sea shore, to the road commonly
called St. Mary's Bay; thence towards the north by a direct line cross-
ing the entrance or mouth of that great ship road, which runs into the
eastern tract of land between the territories of the Souriquois and of the
Etchemins, (Bay of Fundy) to the river commonly called St. Croix,
and to the most 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 the
land, or to run towards the north, to the nearest road, river or spring
Featherstonhaugh and Mudge.
143
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.
Mr. Bradley, in his opening argument, which is quoted in page 43 of
the Report of Messrs. Featherstonhaugh and Mudge, presented to the
commissioners appointed under the fifth article of the Treaty of Ghent,
an extract of the Latin text of the Grant to Sir William Alexander, toge-
ther with the following translation, which has also escaped the notice of
Messrs F. and M.
“By the tenor of this our present charter, we do give, grant, and con-
vey to the said Sir William Alexander, his heirs or assigns, all and sin-
gular the lands of the continent and Islands situated and lying in Ameri-
ca within the head lands or promontory commonly called Cape Sable,
lying near the latitude of forty-three degrees or thereabout from the equa-
noctial line, towards the north, from which promontory stretching to-
wards the shore of the sea to the west to the road of ships commonly
called St. Mary's Bay, and then towards the north by a direct line cross-
ing the entrance or mouth of that great road of ships which runs into
the eastern tract of land between the territories of the Souriquois and the
Etchemins to the river commonly called by the name of St. Croix, and
to the most remote spring or fountain from the western part thereof,
which first mingles itself with the river aforesaid, whence by an imagi.
nary direct line which may be conceived to go through or run towards
into the great river of Canada---and from thence proceeding towards the
east by the shores of the sea of the said river of Canada to the river road
of ships or shore commonly known and called by the name Gachepe or
Gaspe." .
It is believed that the translations used in the only discussions which
have taken place between the two Governments on the merits of the
port. The grant was mentioned on the part of the United States to
show the chain of title, and the origin of the designation of a certain
territory by the name of Nova Scotia. It has also been used in order
to show that, from the time when it was first mentioned in a British
public act, the River St. Croix was designated as having its mouth in
the Bay of Fundy.
In their recapitulation, the commissioners attach great importance
to what they call their discovery. They say:
6 XIV. We have discovered by a critical examination of the Grant
of Nova Scotia 1621, in the original Latin, that the passage which de-
scribes the western boundary of the territory included in that grant, and
144
Report of Messrs.
which boundary was agreed, at the time of the treaty of 1783, to be the
eastern boundary of Massachusetts in conformity with the provision
contained in the charter of Massachusetts of 1691, is susceptible of a
new interpretation, varying in important particulars from the received
one: and we show by a literal translation of the Latin, that the bounda.
ry was intended to run from the most western waters of the St. Croix to
the sources of the Chandiere ; a line, which it has been seen, 'coincides
in a very striking manner with the boundary in the Sieur de Monts'
grant of 1603."
Now, so far as relates to any originality in the argument of the com-
missioners and in the conclusions they draw from their discovery; it
appears to me that the whole is comprehended in the following passage
of the second statement laid before the King of the Netherlands on the
part of Great Britain. .
“Sir William Alexander's grant, which was not in the recollection
either of Mr. Adams or Mr. Jay, when they were examined on oath as
witnesses under the St. Croix commission, and which, in former dis-
cussions respecting boundary under the treaty of 1783, the United States
agents have vehemently rejected, carries the western boundary of Nova
Scotia up to the westernmost source of St. Croix River, and thence to
the River St. Lawrence by a line extending towards the north, and join-
ing the nearest spring or head stream emptying into that river. Ac-
cording to the same grant, the northern boundary of Nova Scotia was
to pass along the southern coast of the River St. Lawrence to Cape
Rosiers.”
66 The terms of the Grant would not bear us out in supposing that the
western Boundary of Nova Scotia was to be formed by a due north line.
The only positive circumstances to be collected from them as guides for
our opinion, are, that the Line between the two sources specified therein
shall be a straight one, and that the source communicating with the St.
Lawrence shall be the nearest. On looking to the map, we instantly
perceive that these guides might lead us to head waters of the River
Chaudiere, as being the nearest to the point of departure of all the
sources north of it falling into the St. Lawrence. But, without presum-
ing to intimate that such was the real intention of the Grant, (f) dat-
ing, as it does, from a period when the face of the country was wholly
unknown, we feel ourselves justified in pointing out the vagueness of
its terms, as fairly acknowledged in the American Statement, and infer-
ring how extremely difficult, or rather impossible, it would have been for
the Negotiators of the Treaty to have fixed the Boundaries between two
(1) The respectable author of that Statement, sensible that such a line would be
towards the west and not towards the north, could not insist on that construction.
Featherstonhaugh and Mudge.
145
Independent States, in conformity with definitions so loosely worded as
to involve the most unexpected contingencies.”
“A line extending from the source of the St. Croix “ towards the
north” to the nearest part of the St. Lawrence would, at all events, strike
that river, owing to the obliquity of its course, far to the west of that
point where a due north line would intersect it. A reference to the map
will make this clear. It must not be forgotten that the Commissioners
under the 5th Article of the Treaty of 1794, in deciding which was the
true St. Croix, adopted the northern stream, to the exclusion of the west-
ern. Thus the variations of this one Grant alone offer four several
north-west angles of Nova Scotia. The western stream being the one
named in Sir William Alexander's Grant, the preference of the northern
stream must surely invalidate the authority of the Grant as a binding
designation of the boundary of Nova Scotia ; and at any period subse-
quent to the Proclamation of 1763, Sir William Alexander's Grant is
altogether irrelevant as to the northern boundary of that province.”.
If I am not much mistaken, the only original discovery of the report
on that subject consists of the insertion of the Comma. But, admitting
that the Crown had the right to determine the course of the line from
the source of the St. Croix to the St. Lawrence, it had never been done
or suggested prior to the year 1763. On the contrary, in the only map
that had an official character, (the map of Mitchell of 1755 sanctioned by
the Board of Trade,) the line is made to run due north, and that not for
the purpose of simply going farther north than the sources of the Penob-
scut; for the line is extended to the banks of the St. Lawrence. At
last, in 1763, the line was expressly prescribed by the public Acts of
Great Britain to be a due north line; and thus matters stood at the date
of the Treaty of 1783.
It was deemed important on the part of the United States to prove the
identity of the boundary line prescribed by the Treaty of 1783, with that
which had been designated by the proclamation of 1763, and the other
previous public acts of Great Britain : and it was of course necessary
for them to demonstrate the identity of both with that which they claimed
under the treaty. The third and fourth sections of the first American
Statement of the case, laid before the King of the Netherlands, were de-
voted to that double object. In the second section, the greater part of
which has been transferred to the introduction of the preceding essay,
the chain of titles and the claim of Massachusetts, as it stood in 1782,
were examined. Always admitting that the boundaries, whether contain-
ing more or less than that claim, were definitively settled by the Treaty
of 1783; it has been urged that the boundaries of Massachusetts, as
described in the Charter and rendered definite in 1763 by the proclama.
tion and other public Acts of Great Britain, were discussed at large in
13
146
Report of Messrs.
the course of the Negotiations of 1762, and had a considerable influence
on the final agreement with respect to that portion of the boundary.
It is not intended to pursue the critical examination of all the other
irrelevant or unimportant parts of the report, and to enter further into
minutiæ, which divert the attention from the true questions at issue be-
tween the two governments. Notice will only be taken of that which
appears new, or has not already been refuted in the preceding pages.
It had been heretofore contended on the part of Great Britain, that the
boundary described in the Treaty of 1783, was identic with, and sug-
gested by the height of land mentioned by Pownall, as that in which
the Kennebec, the Penobscot, and the St. Croix had their sources.
The same assertion is repeated in the report, and the same reasons as-
signed for it. But the former agents of the British Government had
denied the identity of the treaty boundary with that designated by the
Proclamation of 1763. That identity is now admitted in the report: and
a curious and novel inference is drawn, viz : that the description of the
southern boundary of the Province of Quebec in the Royal Proclamation
of 1763, was derived from the information in the map published by
Evans in 1755, although the eastern portion of that map, as re-publish-
ed by Pownall in 1776, belongs to him and not to Evans; and that the
descriptions contained in the Proclamation of 1763 are a mere echo of
the information produced by the explorations of Governor Pownall;
which information was for the first time published, together with his
map, in the year 1776 by Governor Powpall. This anticipating echo
is all that belongs exclusively to the report. .
A double transcript of Mitchell's Map is appended to the report ; one
of which is called Mitchell's Map, but accurately adjusted for latitude
and longitude: in other words, it is a new map entirely differing from
that of Mitchell. The western source of the St. John was known to
Mitchell, and was found on his map: he had no knowledge of the source
of the south branch of that river, and accordingly it is omitted on his map.
In the transcript adjusted for latitude and longitude, the alteration consists
simply in having converted Mitchell's western into the southern branch of
the St. John. The result is simply, that a line drawn from the extremity
of Bay Chaleurs, to the westernmost source of the St. John passes north,
and that if drawn to its most southern source, it passes south of the River
St. John. This might have been shown by looking at any modern map
of the country. I do not understand what inference can be drawn from
that fact, nor why in order to prove it, it was necessary to alter Mitchell's
Map. But when the commissioners who appealed to Coronelli in or-
der to prove the extent of geographical knowledge in 1689, repudiate
Mitchell's Map, they forget that this has been adduced for the purpose of
showing the knowledge which the negotiators who had that map before
Featherstonhaugh and Mudge.
147
them, during the whole course of their negotiations, had of the topogra-
phy of the country.
The assertion that although the north-west angle of Nova Scotia,
placed at the source of the River St. John in the rejected article first
proposed by the American Negotiators, was by the Treaty removed 120
miles west of that source, yet, the Highlands contemplated in the reject-
ed article and those described in the Treaty are the same, is again re.
asserted in the report without assigning any new reasons for it. The
same may be affirmed of all that relates to the Negotiations of 1782, to
the opinions expressed by Mr. Sullivan, Mr. Mauduit, and others, and
to all the residue of the first part of the report; with the exception of the
proposal to annul a decision made in conformity with a solemn treaty.
There is, however, a point which the authors of both the British State-
ments and the late Report have very naturally misunderstood, inasmuch
as sufficient evidence had not been adduced in that respect on the part
of the United States. The contract of the State of Massachusetts in
the year 1792 with Jackson and Flint, had been deemed sufficient to show
in what manner the 'Treaty was understood by the State : and the survey
of the land which was on file in the Surveyor General's Office was not
produced. It was inferred on the part of Great Britain, from an errone-
ous delineation in Greenleaf's map of Maine, that the Grant did not ex-
tend beyond the sources of the Penobscot.
The plan of the survey may at any time hereafter be produced by the
United States. It was executed in the years 1793 and 1794, and con-
tains 2,943,133 acres. Its eastern boundary extends from the Scoodiac
Lakes, one hundred and fifty-two miles magnetic north, crossing the
St. John above its junction with the Madawaska, and extending about
fifteen miles beyond it. There the surveyors, having mistaken tributary
streams of the Madawaska for rivers emptying into the St. Lawrence,
turned to the west along highlands which, owing to that mistake, they
supposed to be the highlands of the Treaty. The western boundary of
the tract is, from its northern extremity to the sources of the Penobscot,
for 83 miles parallel to the eastern boundary, crossing the St. John, the
Aliguash, and the Restook near its source. Farther south that western
boundary is parallel to the eastern branch of the Penobscot, and termi.
nates at the Passadumkeg.
A great portion of the second part of the report (page 42 to 52) enters
into details which can have no effect whatever on the true construction
of the treaty. It is not meant to say that, because the United States do
not consider positive elevation and mountainous character as properties
imposed by the Treaty on the highlands dividing certain rivers, Great
Britain has not the right to ascertain all the facts in that respect, and
from the ascertained facts to draw every legitimate inferences she may
148
Report of Messrs.
deem proper. But the portion of the report alluded to does not in that
respect show any thing else than that the American line, at least, was
but very partially examined by the Surveyors appointed under the treaty
of Ghent, and has not to this day been properly surveyed. The height
of the spot claimed by the United States, as the north east angle of their
boundary, had been deduced from the estimates of Mr. Bouchette, the
principal British Surveyor; and since these have been found to be erro-
neous, it is probable that the height of that spot may not much exceed
the estimate in the Report. All this, however, of no importance in the
view of the subject taken by the United States, remains uncertain ; and
the facts will be ascertained by the Surveys which have now been under-
taken on their part.
The report dwells on some controversies which took place under the
Ghent Commission, respecting certain conjectural maps, and on the
opinions and acts of the American Commissioner and Agent, which
most certainly cannot affect any question at issue.
The conjectures of the Surveyors who made the first explorations
must have been in many respects erroneous; and, during the prelimi-
nary proceeding of the Ghent Commission, the Agent of the United
States may have believed that those conjectures would be corroborated
by further investigation. But, from the time when the treaty was con-
cluded, and before the nature of the ground, along which the line claimed
by the United States does extend, had at all been explored, the same boun-
dary has at all times been claimed by them, for the simple reason that, ac-
cording to the Treaty, it is traced by nature, is immoveable, and does
not in the slightest degree depend on the nature of the ground. It is true
that, if, at the same time, that ground had been found to correspond with
the character arbitrarily required of it on the part of Great Britain, the
objection itself could not have been made: and Surveyors on both sides,
then and now, may have been anxious to find the facts to correspond
with their wishes. But from the moment when the discussion took
place, from his very first opening argument, the Agent of the United
States was too wise to rely on such frail foundation, and rested the claim
of the United States on its true and inexpugnable principle, the division
of the rivers specified by the Treaty. From that principle, neither he,
nor the Commissioner of the United States, nor their agents at a sub-
sequent time, nor the State of Maine in its legislative reports, nor the
committees of Congress which have taken cognizance of the subject,
have ever departed. It has been quite otherwise, on the part of those
who, divesting the highlands of the express 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
Featherstonhaugh and Mudge.
149
principle on which the right of the United States does rest is so clear
and so obvious, that all 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 all those arguments al-
ready stated by Mr. Bradley, the agent, and, in his opinion of the case,
by Mr. Van Ness, the commissioner of the United States under the
were able 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 map to be admitted and the American map to be rejected.
The proposal 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
the 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. It will 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. Odell's survey of the Restook and the
sketch of the country as viewed from Mars Hill and Houlton plantation,
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 Aliguash 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 line
of exploration. But they cannot claim to have discovered a new line
of Highlands : they have only ascertained with precision the elevation
13*
150
Report of Messrs.
and nature of the ground, erroneously claimed by Great Britain as the
treaty boundary; but the position of the Highlands thus claimed had
been discovered, and was fully indicated by the former explorations of
the two British surveyors, Mr. Odell and 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
statement, written with equal simplicity and perspicuity of the instru-
ments used, of all the precautions taken in order to secure a true result,
of the barometric observations, of the line of exploration and of the diffi.
culties which 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-
duced 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 States 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 facts, and that, whether in a direct negotia-
tion between the parties, or still more 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
Featherstonhaugh and Mudge.
151
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 north 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-
rates 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 Lake situated about fiſty-six miles from Bay Chaleurs,
the same continued ridge again rises in its direction towards that bay to
the height of two thousand feet. And they conclude by saying:
66 We therefore present this axis of maximum elevation of the whole
country as the true Highlands intended by the 2nd. article of the treaty
of 1783, 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 themselves into the St. Lawrence from those which flow into
the Atlantic Ocean, do not, for more than two hundred miles in a
straight line, 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 distance 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 fulfil 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 Chaleurs : to which must be added, that
according to the British construction of the Treaty, neither the St. John,
nor the rivers that empty themselves into the Bay Chaleurs, 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.
152
Report of Messrs.
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 1927 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 superflaous 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-
Featherstonhaugh and Mudge.
153
necticut 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 its passing at a distance of from forty to fifty miles north from
the source of that river, deprives the said northern branch of mountains
of all reasonable pretension to be the highlands intended by the Treaty
of 1783.” All which may be very true, as applied to the porthern branch,
whether theoretical or real thus described in the report.
But the commissioners in their recapitulation (XIX.) say; 6 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-western most 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 "highlands” 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
cominissioners 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 boundary, is their boundary. And in as much as the said real or
fictitious northern chain does not ſulfil the conditions of the Treaty, and
passes fifty miles north of the sources of the Connecticut, they conclude
that the line actually claimed by the United States, is fifty 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 St. Lawrence and those of the St. John are so situated,
154
Report of Messrs.
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. This
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 much 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 St.
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 does 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 948 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-
Featherstonhaugh and Mudge.
155
ing the requisite positive elevation, 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 inseparable adjunct in the treaty, means
nothing more or less than lands which are high, or which have a suffi-
cient relative elevation ; that it does not imply a mountainous charac.
ter in the sense attached to that word by the British agents, and that if
the Negotiators had intended to impose on the boundary such a charac-
ter, they would instead of the word “ Highlands," have used that of
- Mountains," or some other analogous expression.
To return to the axis of elevation ; the commissioners complain that
if the due north line does meet their axis in the worst part of its break,
it is because that line was drawn from the source of the Chepunaticook
or northern branch of the Scoodiac, instead of being run from the wes-
ternmost source of that river. And they say that if this should be ulti-
mately assented to, it will lose to Great Britain more than 1,000,000 of
acres of land. But it is not so much the loss of the land which they
regret, as that the line, if drawn from the westernmost source of the
Scoodiac, would have struck the Highlands claimed by Great Britain, at
a point perhaps three or four hundred feet higher, and having more the
appearance of a peak, than that actually intersected by the existing due
north line.
And for that miserable reason, on account of a fact which does not in
any way affect the merits of any question at issue between the two na.
tions, solely because under the influence of their Mountain Monoma-
nia, those gentlemen deliberately advise the British Government, to
break a solemn decision made in perfect conformity with the provisions
of the treaty of 1794, never objected to on the part of Great Britain, and
acquiesced in for more than forty years.
· On so serious a subject, I will not permit myself to make any com.
ments. I can but express my deep regret that such suggestion should
be found in a document laid before the Parliament of Great Britain, and
refer the reader to the appended extracts of the report, for the reasons
adduced in support of that most extraordinary proposal. But I am
bound to reinstate the facts, and to do justice to the memory of a re-
spectable and distinguished 'citizen, who displayed on that occasion a
most honorable impartiality.
By the treaty of 1794, the question, what river was truly intended un-
der the name of the River St. Croix, was referred to the final decision
of three commissioners, one to be named by each of the contracting
powers respectively, and the third by the two first commissioners : and
if they could not agree, each was to propose one person, and of the two
names so proposed, one should be chosen by lot. The said commis-
156
Report of Messrs.
:
sioners were authorized to decide what river, from its mouth to its
source, was the River St. Croix intended by the treaty. The article
concludes in the following words : 6 and both parties agree to consider
such decision as final and conclusive, so as that the same shall never
thereafter be called into question, or made the subject of dispute or dif-
ference between them.” It was originally provided by that article,
that the commissioners should particularize the latitude and longi-
tude of the source of the River St. Croix. By the explanatory article
between the two Powers of 15th March, 1799, they were released from
that obligation, and left at liberty to describe the said river in such other
manner as they might judge expedient, which description should be con-
sidered as a complete execution of the duty required of them: and it was
further agreed that a suitable monument should be erected at the place
ascertained and described to be the source of the said River St. Croix.
The three commissioners thus appointed, did on the 25th of October,
1798, unanimously agree in deciding that the true River St. Croix was
that which has its mouth in Passamaquoddy Bay at a point about one
mile northward from the northern part of St. Andrews Island, and (after
stating the latitude and longitude of that point and describing the course
of the river upwards) its source to be the source of the northward branch
of the said river, which said northward branch had the Indian name of
Chepunaticook. A stake, properly marked, placed at that source, and a
map annexed, are referred to in the decision. A monument has since
been erected at the said source : and the River St. Croix thus described
is that generally known by its Indian name, Scoodiac.
The main subject of contention was, which was the River St. Croix con-
templated by the treaty. The British agent demonstrated beyond contra-
diction that Boone Island, situated a few miles above the mouth of the Scoo-
diac, was the Island of St. Croix, so called by De Monts, and on which he
had a temporary settlement in 1604—1605, and the same which, after its
having been abandoned, was visited in 1607 by Lascarbot; and also
that the River Scoodiac, particularly described by Champlain who ac.
companied De Monts, was the same river first called by Champlain
Etchemin River (9) and afterwards St. Croix. The American agent
contended that the St. Croix of the treaty was the Magaguadavic, another
large river which has also its mouth in Passainaquoddy Bay east of the
Scoodiac; first, because, of the two rivers delineated in Mitchell's Map
which have their mouths in Passamaquoddy Bay, the easternmost is that
(g) There are two rivers called Etchemin by Champlain; one is the Scoodiac;
and the other, either the Chandiere or the stream next to it still called Etchemin. The
last derived undoubtedly its name from its being the route by which the Etchemins,
or St. John's Indians, travelled towards the site of Quebec.
Featherstonhaugm and Mudge.
1597
which he calls St. Croix ; secondly, because, according to Indian tra-
dition, the Magaguadavic was the St. Croix,
The choice by lot had fallen on an American citizen, and Egbert
Benson of New-York was the third commissioner. He decided that the
Scoodiac was the River St. Croix contemplated by the treaty; and the
two other commissioners concurred or acquiesced in his opinion. His
reasons are detailed at large in a report made by him to the President
of the United States. They were in substance, that the River St.
Croix contemplated by the treaty was undoubtedly that so called, in the
grant to Sir William Alexander, and in all the subsequent acts of Great
Britain ; that the River St. Croix intended by the grant of 1621 to Alex-
ander could not possibly have been any other than that mentioned and
described by Champlain and Lescarbot, the only authors, who, prior to
1621, had ever mentioned that river ; that Mitchell, in a map made under
the auspices of the board of trade, could not have intended any other St.
Croix than the river thus recognized by British public acts ; and that his
involuntary error in mistaking the eastern for the western river could
not affect the terms of the treaty. Although Massachusetts had, ever
since 1764, contended for the Magaguadavic as being the true St.
Croix, not a voice was raised in America against the decision.
After the main question had been decided, the next which arose was,
what was the source of the River St. Croix; and on that point there
were three opinions which have been stated in No. I. of this appendix.
The three commissioners, however, acquiesced in that of Mr. Benson,
who considered the source of the Scoodiac to be its outlet from Lake
Genesagurangunnsis, the lowest of those lakes which have each a distinct
Indian name, but have been called by the English and the Americans
66 the Scoodiac Lakes.” A decision to that effect was actually prepared
by the commissioners, and is on file amongst their official proceedings.
It was then, and not till then, that what is called in the report a com-
promise took place ; and it had no connection with the decision res-
pecting the true River St. Croix, concerning which Mr. Benson and the
British Commissioner had always perfectly agreed. It was then that the
American proposed to the British Agent, that they should unite in ask.
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
original letter, dated Providence, 23d of October, 1798, from Robert
Liston, Esq., at that time his Majesty'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
158
Report of Messrs.
said proposal of the Agent of the United States at that time, to recoms
mend to the said commissioners under the fifth Article of the said Treaty
of 1794, to alter their decision, as aforesaid, 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 :"
“ Providence, 23 October, 1798."
6 Private."
« Sir :
“I have considered with attention your letter of this day; and it ap-
pears to me evident that the adoption of the River Cheputnatecook, 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 easternmost
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 on 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 his
Majesty's Secretary of State.”
I 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. Liston, had not already been decided, and if, as most erro.
Deously 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 Magaguadavic, to which Mr. Liston does not even
allude, would have been mentioned 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-
Featherstorhaugh and Mudge.
159
let of the Scoodiac Lakes, would have intersected the Chepunatecook
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 first 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 inportance. 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 westernmost 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 coinmissioners 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
. (h) It might have been added that in the dialect of the Passamaquoddy Indians,
Scoodiac does not mean lowland but burnt land, that it is derived from scoot fire and
acki land.
160
Report of Messis.
is for more than one half of its length distant more than one hundred
miles from the sources of the tributaries of the River St. Lawrence,
and touches those sources only when it reaches the Chandiere, does ac.
tually divide the rivers that empty themselves into the River St. Law-
rence from any other rivers whatever. Though it should be proved, that
the Highlands claimed by the United States, are less elevated and want
the mountainous character ascribed to the British line, this does not
prove that such character and a greater elevation are a condition im.
posed by the treaty on the Highlands therein contemplated. On both
those subjects the report is altogether silent; nor does it discuss the
question whether the St. John and the Ristigouche are or are not under
the treaty Atlantic Rivers. It leaves all the great questions at issue
where 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 identical 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 defects 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
Featherstonhaugh and Mudge.
161
is the construction 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 be taken as synonymous:
and in that case, there is no longer 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
land which, without being hilly, divides waters flowing in different 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 be hazardous
to include the Rivers St. John and Ristigouche in the class of rivers fall.
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. No such identity had been admitted in the British statements :
and the award declares that “the ancient delimitation of the British
Provinces does not afford the basis of a decision.” But if, as the
United States contend and the commissioners affirm, the identity had
been acknowledged by both parties, and the objection respecting the in.
14*
162
Report of Messrs.
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 accomplished publicist, would not have resorted to the presumed
improbability that Great Britain could have agreed to the boundary
claimed by the United States, or to any other presumed intentions 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 suffi-
ciently explicit. The British commissioners affirm, “ that the height
of land described by Evans and Pownall in 1755, extended to the east-
ern branches of the Penobscot,” and “that the description of the south-
eru 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 of land laid
down in Evans' map."
They clearly quote Evans map of 1755, without having seen it ;
though they might have found a reprint of it in Jeffery'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,
Connecticut and Rhode Island.” It does not embrace a single foot of
the height of land in question, and does not approach it. The Connec-
ticut River is not delineated on it farther north than a few miles north
of the 430 degree of latitude, or about 140 miles south of the sources of
that river. All north of that latitude (43° 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 Downall's Map or topographi-
cal essay, which were both published for 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
dangerous to their respective claims;" because it was not known to them
Featherstonhaugh and Mudge.
163
" that a range of Highlands corresponding 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 Chandiere and the Bay of Chaleurs. How far,
that discovery due 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 ignorance, 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 1668, 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 its 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 :
6 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 Messrs.
all that tract of land 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 thus de.
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 :-
66 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-western corner
of Sagadahoc can be claimed, is the 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 British 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 and heredita-
ments lying and extending between the said country or territory of
Nova Scotia, and the 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.)
Featherstonhaugh and Mudge.
165
Grant of Nova Scotia to Sir W. Alexander, 1621.
That grant is described in the following terms:
65 Omnes et singulas terras Continentis, ac insulas situatas et jacentes
in America intra caput seu promontorium communiter Cap de Sable ap-
pellat. Jacen. prope latitudinem quadraginta trium graduum aut eo circa
ab equinoctiali linea versus Septentrionem, a quo promontorio versus
littus maris tenden ad occidentem ad stationem Sanctæ Mariæ navium
vulgo Sanctmareis Bay. Et deinceps, versus Septentrionem per direc-
tam lineam introitum sive ostium magnæ illius stationis navium trajicien.
quæ excurrit in terre orientalem plagam inter regiones Suriquorum et
Etcheminorum vulgo Suriquois et Etchemines ad fluvium vulgo nomine
Sanctæ Crucis appellat. Et ad scaturiginem remotissimam sive fontem
ex occidentali parte ejusdem qui se primum predicto fluvio immiscet.
Unde per imaginariam directam Lineam quæ 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 portum 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
naval station which penetrates the interior of the eastern shore betwixt
the countries of the Souriquois and the Etchemins, to the river, com-
monly called the St. 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 the great River of Canada. And from thence advancing to.
wards the East by the gulf shores of the said River of Canada, to the
river, naval station, fort, or shore, commonly known or called by the
name of Gathepe 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 be without an ob.
166
Extracts from Report of Messi'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 proximam navium Stationem fluvium vel scaturiginem in magno fluvio
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.
T
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 ; versus Septentrionein therefore here is equivalent to north-west.
This is a fair deduction from the general description of the course,
which is ; 6 versus Septentrionem a quo "promontorio versus littus maris
tenden ad occidentem,” stretching westwardly towards the north, the term
for which is north-west. That “ versus Septentrimem” is to be gram-
matically construed in connection with a 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 “ab equinoctiali Linea,” it would only
serve 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
6 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
up the first stream which flows into it from its western bank, and up to
6 its most remote source or spring.” And by referring to the map, it
will be seen, that nothing but a local 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
direction to the nearest naval station, river, or spring, discharging itself
into the great river of Canada. Such a course leads directly to the east
Featherstonhaugh and Mudge.
16
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 1639, of which
the extract on map B, No. 3, has been already alluded to in a note at
p. 12, we have conceived ourselves in duty bound to submit these ob.
servations with the collateral evidence to your Lordship. At the period
when 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 Grant had then been considered to be 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. Croix, in a north-westerly and westerly direction, to the head
waters of the Chandiere, always south 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. 3, has an engraved dotted line
running from 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 for the French colonies. At what period the mistake oc-
curred which led to the erroneous construction found in so many maps,
the effect of which is to carry a due north line from the sources of the
168
Extracts from Report of Messrs.
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 led 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 advancedi 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
construction of the boundary it describes, viz: " Ad proximam naviung
stationem," 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 ulti-
inan. And if this word “proximam” was significantly inserted in the
original Latin, it seems to have been as significantly overlooked in the
American translation. That translation is as follows:-
6 All and singular the lands upon the Continent, and the islands,
situate lying and being in America, within the head or promontory com.
monly 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 commonly called by the name of the Holy
Cross, or the St. Croix, and to the furtherest 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 the first 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, 6 versus Septentrionem,"
which, as has been shown, is strictly equivalent to north-west, rendered
every time it occurs, by the words “to the north ;" so that by those
words the readers of the translation must necessarily suppose a due north
line to have been intended. Now, if the legitimate sense of "versus
Featherstonhaugh and Mudge.
169
Septentrionemn," be a due north line, where the boundary is directed to
leave the westernmost waters of the St. Croix, why is not the same mean-
ing to be applied to the words “ versus Septentrionem," in the passage of
the grant where the line is directed to cross the entrance of the Bay of
Fundy, and where the course must of necessity be north-west? But if the
words 6 versus Septentrionem” in that passage were to be construed due
north," and the line were to be so drawn, that line would never reach the
St. Croix River, but would pass forty miles to the east of it. The words
6 versus Septentrionem," therefore, must be rendered in both these casis
in a consistent manner, and not in such a way as is totally opposed to the
known bearing of the St. Croix River from St. Mary's Bay. The ex-
pression “ to the north,” in the American translation, is therefore clearly
an incorrect interpretation of the original words “ versus Septentrionem
per directam lineam,” or towards the north by a straight line; meaning
that course which we have shown was north-west.
Next we have, “ ad proximam navium stationem, fluvium vel scatu-
riginem in magno fluvio de Canada sese exonerantem,” rendered - to
the first bay, river, or spring, emptying itself into the Great River of
Canada,” as though any bay in the ordinary meaning of the word, viz.
a place where boats could receive shelter, would fulfil the intention of
the grant, and be a true rendering of the words “proximam navium
stationem.” If it be assumed that the intention of the grant was not to give
a line of boundary taking its direction from the westernmost waters of the
St. Croix, to a known roadsted or naval station, but merely to draw a due
north line to the St. Lawrence, may it not reasonably be asked, why
was not the line directed to run ad Septentrionem in magno fluvio de
Canada ? If such was the intention, the mentioning of a bay or a river
was superfluous. It could not have been held inportant for defining the
limits of the grant, that there should be either one or the other at the
point where the boundary reached the St. Lawrence, if the boundary
were to be a due north line continued till it struck the St. Lawrence.
Neither was it known at that time that either bay or river existed in the
part of the St. Lawrence to which the American translation would draw
his line. The small unnavigable streams taking their rise from twenty
to thirty miles south of the St. Lawrence and north of the St. John,
were unknown at that period, and would not have been dignified with
the name of rivers, had they been known, seeing that in our times, they
serve only to float Indian canoes, and the pine logs which are sent down
the streams to be manufactured into deals by the saw-mills constructed
near their mouths. But if the intention had been to establish a line
betwixt the westernmost waters of the St. Croix and the roadsted or
naval station of Quebec, the words ad proximam navium stationem,
fluvium vel scaturiginem in magno fluvio de Canada sese exonerantem,"
15
70
Extracts from Report of Messrs.
would be full of significancy, since the Chandiere River and the roadsted
or naval station of Quebec, are both there, to correspond accurately with
the words of the grant.
We believe it will not be denied that the specific meaning of the word
6 statio,” when referring to naval matters, is “a roadsted where ships
may ride." Upon this occasion, the words “ navium stationem,” clearly
prove this to have been intended, and not any small bay or indentation
on the river coast. Now, as there is not any roadsted to be reached
by a due north line, and there is not even a safe anchorage in that part
of the River St. Lawrence which such a line would strike, we are
compelled therefore to choose between Quebec and Gaspe, each of which
is “a Statio" in the sense of the grant; but Gaspe being twice as distant
from the westernmost source of the St. Croix, as Quebec, this last must
of course be considered the 66 proximam stationem.”
The same remark with respect to comparative distance, may be applied
to the Chandiere, whose sources are nearer by one half, to the westernmost
waters of the St. Croix than are any other sources of the small streams
emptying themselves into the St. Lawrence, which could be reached by
a due north line.
The American translation of the grant of Nova Scotia, which we have
quoted, is an official one. It is printed in document 126 of the House
of Representatives, forming No. 1., of the appendix to the message of
the President of the United States, dated Washington, January, 1838,
on the subject of the 66 Maine Boundary, Mr. Greely," &c.
Da
Mitchell's Map.
On Mitchell's map, the Bay of Chaleurs is laid down one degree and
forty minutes too far to the east in respect of longitude, and about forty
minutes too far to the north in respect of latitude. This remarkable
error perhaps deceived the American negotiators at the Peace of
1783; and the claim they now make to derive support to their “ high.
lands” from the circumstance of the western termination of the Bay of Cha-
leurs appearing, upon Mitchell's map, to be only about thirity-five miles
from the River St. Lawrence, is much favoured by this error. The true
distance is nearer seventy-five miles. On the same map, the western.
most sources of the River St. John are laid down about thirty miles
from the St. Lawrence, whilst the true distance is about sixty-two miles.
A line drawn upon Mitchell's Map from the western termination of the
Bay of Chaleurs to the westernmost branch of the St. Johns, would pass
to the north of that river; and a line drawn upon that map from the
easternmost branch of the Chandiere to the western termination of
the Bay of Chaleurs, would, if agreed upon as a boundary, throw the
Featherstonhaugh and Mudge.
171
River St. John into the United States ; but a line drawn from the true
geographical position of the western termination of the Bay of Chaleurs,
to the western most sources of the River St. John, if agreed upon as the
boundary, would throw that river far to the north of the boundary line,
and therefore on the British side of it.
XV. With reference to the great errors of Mitchell's map in lati-
tude and longitude, we have suggested some remarkable considerations
resulting therefrom. We have observed that if a line were protracted
upon that map between the most western sources of the St. John and
the western termination of the Bay of Chaleurs, and were adopted as the
Boundary between the two countries, the River St. John would fall to
the south of that line, and be within the United States. Whereas by a
line protracted between the above mentioned points, properly adjusted
as to the latitude and longitude as they exist on our map, the River St.
John would be left on the British side, and to the north of the Bounda-
ry between the two countries. But though we have referred to Mitchell's
map for the purpose of showing how the mistakes in that map may have
contributed to account for the erroneous opinions prevailing in the United
Slates about the Boundary Question, we are quite aware that Mitchell's
map is not, and cannot be any authority on this question : inasmuch
as it is not mentioned or referred to, in any manner, in the Treaty.
TheBoundary must be determined by applying the words of the Treaty
to the natural features of the country itself, and not by applying those
words to any map.
Decision of the Commissioners under the Treaty of 1794.
We have thus a regular recognii on of Massachusetts being bounded
upon Nova Scotia, and of the most western waters of the St. Croix form-
ing part of the boundary of Nova Scotia. And how was the duty of
the Commissioners under the Treaty of 1794 performed ?
Disregarding the obvious propriety of choosing the most western
source of the river, they fixed upon the north branch ; and this in the
face of the most extraordinary evidence against their proceeding.
For the Scoodeag, which is the known Indian name of the St. Croix,
runs from its most western source to its mouth, under the same name of
Scoodeag, whilst its northern branch, which comes in at the upper falls,
bears the separate name of Cheputnaticook. The westernmost sources
of the Scoodeag are in a low, flat, lake country, consisting of many lakes
running into each other, and hence the Indian name given to that part
of the country and to the river; for Scoodeag means low, swamp mea-
dow. Now the very continuity of its name should have convinced the
Commissioners of the impropriety of deviating from that line. But the
172
Extracts from Report of Messrs.
British Commissioner was overruled. He had, in conjunction with
the American Commissioner, chosen an American gentleman, upon
whose intelligence and integrity he relied, for the third Commissioner.
This gentleman was, in point of fact, an umpire to decide all differences
which might arise ; and the American Commissioner having claimed
a stream called Magaguadavic, lying still farther to the east than the
Cheputnaticook, to be the true St. Croix, the British Commissioner
consented to a compromise, the result of which was, that although they
made a correct decision as to the identity of the St. Croix, they practi-
cally decided to adopt the north source, as if it had been the most west-
ern source. That these gentleman went out of the line of their duty, as
prescribed in the Treaty of 1794, is evident; and much future expense
and misunderstanding would have been saved, if their report had been
restricted to the identification of the river. This will be seen by look-
ing to the map.
The St. John, like all other large rivers, occupies the lowest level of
the country through which it flows, and holds its course through a valley
of considerable breadth, which below Mars Hill extends, in a modified
manner, some distance to the westward of the bed of the river. The
nearer a due north line could be brought to the St. John, the better the
chance was that it would run up that valley, whilst the further it lay to the
west, the greater was the certainty of its missing that valley and of its more
speedily meeting the highlands of the country. And this has in prac-
tice proved to be the case ; for the exploratory north line drawn from the
monument, reached no highlands until it came to Mars Hill ; whilst if the
line had started from its true point, the western most waters of the Scoodeag,
it would have reached the “highlands” about twenty-five miles south of
Mars Hill, near to the point where they separate the St. Croix (a tri-
butary of the Roostuc) from the waters of the Meduxnakeag, which flows
into the St. John. These highlands are distinctly visible from the
American post at Houlton, and are about fifteen miles, magnetic west,
from that post. This deviation of the Commissioners from their duty,
which has had a most unfortunate influence upon the settlement of this
great question, was besides highly prejudicial in another respect to the
British rights. If it should be ultimately assented to, it will lose to
Great Britain more than one million of acres of land.
In 1798, an explanatory article was added to the Treaty of Amity of
1794, releasing the Commissioners from their obligation to conform to
the provisions of the Vth article of the Treaty, in respect to particular-
izing the latitude and longitude of the source of the River St. Croix ;
and declaring, amongst other things, that the decision of the said Com.
missioners “respecting the place” ascertained and described to be the
Featherstonhaugh and Mudge.
173
source of the said River St. Croix shall be permanently binding “ upon
His Majesty and the United States.”
Upon this, we beg to remark, that it has been made sufficiently
manifest, that the Treaty of 1783 intended that the point of departure of
the due north line should be at the westernmost source of the St. Croix,
the description of the western limits of Nova Scotia having been regu-
larly maintained unaltered in all the documents from the grant, of 1621.
The proceedings of Congress, also, as found in the secret journals,
always speak of “the boundary settled between Massachusetts and Nova
Scotia,” and of the line being to be settled “ agreeably to their respective
rights.”
To all these considerations, we add the important fact, that in the Vth
article of the Treaty of Ghent, it is stipulated that the ascertainment of
the north-west angle of Nova Scotia, is to be made 6 in conformity
with the provisions of the said Treaty of Peace of one thousand seven
hundred and eighty-three.” A fact which further confirms the general
obligation to consider the most western waters of the St. Croix, as the
true boundary of Nova Scotia.
The irresistible conclusion then presents itself, that it is indispensable
to the faithful execution of the 2d article of the Treaty of Peace of 1783,
that the commencement of the due north line be drawn from the north-
westernmost source of the St. Croix ; and that whatever mistakes may
have hitherto crept in, during the attempt to settle this question, the two
Powers, in order to execute the Treaty, must at last go back to that point.
It is true that Her Majesty's Government may be considered, looking
to the explanatory Article, as pledged to abide by the decision of the
Commissioners under the Treaty of 1794, yet this pledge was given
before the proceedings of those Commissioners were known to be in
violation of the Treaty of 1783, and when the nature of their compromise
was not understood. That compromise was onesided in every respect.
The acknowledgement that the river decided upon was the true St. Croix,
could not have been avoided. The ample means of identifying it have
long been public. But in return for that acknowledgement, Great Britain
is asked, by the selection of a wrong point for the source of that river, to
lose a territory of more than one million of acres of land, and has been
subjected in consequence of that erroneous decision, to much expense and
trouble, by the delay in the execution of the Treaty of 1783.
If then, the United States had ground for refusing to be bound by
the adjudication of the King of the Netherlands, under the Convention
of the 29th of September, 1927, which by article VII of the Conven-
tion was to be taken as “ final and conclusive,” because his adjudication
was a compromise, and not a decision upon points submitted to him,
and was not conformable to the conditions required by the Treaty of
15*
174
The British. Agent
1783, how much better ground has Great Britain to refuse its sanction to
the proceedings of the Commissioners of 1794, now that they are dis-
covered to be in violation of the Treaty of 1783, at the same time that
they are the main cause of the difficulties which have lain in the way
of the execution of that treaty !
No. V
Extracts from the Arguments of the British Agent under the Ghent
Commission.
The British Agent before the Commission of 1798, from whose argu-
ments extracts have been given at large in the No. I of this Appendix,
is the same gentleman who twenty years later saw cause to change his
opinions, and who, as his Britannic Majesty's Agent under the Ghent
Commission, did suggest in 1818, and sustained with great zeal, the new
pretension on the part of Great Britain to place the north-west angle of
Nova Scotia south of the River St. John. He was quoted as very com-
petent authority of what was the prevailing understanding in New
Brunswick, in the year 1798, and to show that, at that time, with the
treaty and printed maps before him, and with a general knowledge of
the country, he construed that instrument as every other person then
did, according to its obvious and natural sense.
The following extracts, from his arguments before the Ghent Com- .
mission in 1820, 1821, will indicate the reasons by which he sustained
that singular change of opinion.
6 At Mars Hill there will be found a point of intersection of the north
line with highlands fully answering the description in the treaty : there,
it is conceived, is the point at which the north line ought to terminate;
for these lands are not only unquestionably the highest, but they are also
the first that have been intersected by the north line; and it would not
only be unreasonable to pass over these to look for others, which, if found,
would not so well answer the description, but would also be inconsistent
with the meaning of the words used in the treaty, viz : “ North to the
highlands ;” which words are 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."
It is presumed that it will admit of no doubt that the true intention
of that part of the treaty, now under consideration, was to secure to the
under the Ghent Commission.
175
United States the objects solely which are above specified in this regard ;
and that it was likewise the intention of this part of the treaty, to leave
to his majesty the undisputed and undisturbed right and possession of
and to all parts of the adjoining territory not intended to be included
within the boundaries of the United States. This intention will be
literally 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 that empty themselves into the River
St. Lawrence from those that fall into the Atlantic Ocean." The ex-
pression actually made use of is, along the said highlands which divide
the rivers, &c. For it is to be observed, that the north-west angle of
Nova Scotia is distinctly defined before any mention is made of the
circumstance of the highlands, which form a subsequent part of the
boundary dividing the rivers mentioned, in that regard, in the treaty.
And this circumstance, of the highlands dividing rivers, is mentioned,
not as constituting a part of the definition of the term, but merely as
matter of description, with the view of securing to the United States the
sources of the rivers which empty themselves within the boundaries, as
before stated. The words descriptive of the eastern boundary of the
United States, are these : “ 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 di-
vide the rivers that fall into the Atlantic Ocean from those which fall
into the River St. Lawrence.” These words, taken in their literal and
individual signification, would involve a construction altogether incon-
sistent with other parts of the treaty, and with facts at the time within
the knowledge of the framers of it; and if the foregoing observations
upon the first description of this part of the boundary be, as they are
presumed to be correct, these words, descriptive of the eastern boundary,
must, of necessity, be interpreted in a corresponding sense.”
66 The Highlands thus intersected by the due north line, lie in the
general course and direction of a line drawn from the north-western most
head of Connecticut River, along the well known and very elevated
and conspicuous height of land forming the acknowledged and notorious
landmark and boundary between the two nations, in that quarter which
divides the Rivers Chandiere and du Loup, emptying themselves into the
River St. Lawrence, from the rivers Penobscot and Kennebec, falling
into the Atlantic Ocean. This well known height of land being the
only highland which actually divides the 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
176
The British Agent
extend north-easterly in a direction towards Mars Hill, in a distinct and
unbroken ridge, for many miles, and to be afterwards connected with
Mars Hill by a succession of mountains and broken ridges of High-
lands, intersected with ponds and 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 States, 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 66 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 difference
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.
os 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 5th article of the treaty of
Under the Ghent Commission.
177
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 under 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
intuitor, 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 to
be that angle which is 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 incontestably established, that the line along the highlands
intended by the treaty, should and must be a line south of the River St.
John, it results in demonstration, that the north-west angle of Nova
Scotia, designated in the 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 5th article of the treaty of
Ghent."
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, had 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 Restook, 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
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 governors 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
Note Explanatory of Maps.
179
.
1
1
map from the Military Atlas (as well as in that of Pownall) that line is
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 100,000 acres of land to Governor Ber-
nard, Pownall and others, west of the Scoodiac and extending to that
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 was the true highlands intended by the 2d article of the treaty
of 1783, 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 River St. Lawrence from those which
flow into the Atlantic Ocean, to the north-westernmost head of the Con-
necticut River.” How far those true highlands fulfil the condition 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 where 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. .
WA
ERRATA.
Page Line
33, 37, for their
67, 1, 5 is
76, 25, “ accompany this
read this.
66 it is.
4 were annexed to the first
• American.
" for.
66
was.
109, 6, 6 to
132, 25, « were
137, 2, 6 definitely,
139, 36, 66 Grant,
146, 34, 6 is simply,
148, 19, “ proceeding,
150, 15, “ they,
165, 37, 5 fort,
definitively.
Grant, or.
66
is.
proceedings.
the Commissioners.
port.

09
616
ANTWURSTUURDU
LA
URULACINIO TRUTHIRUR
LUCU
MU
ZMLUVJUULI
ERENCE
TIMIT
Cosim
ER DE LA
Metis R.
A MAP
Reduced from the official MapA ,
"Hof the Territory contained between the lines respectively contended for,
BY THE
UNITED STATES and GREAT BRITAIN
Was bring the North Eastern boundary of the United States in conformity
with the treaty of purce of 1783. Embracing also the adjacent parts of the
dominions of the two Powers.
REFERENCES.
| A. North westangle of Nova Scotia, as contended for by the U.States.
B. . . . .
. .
Great Britain
C. North western most head of Connacticut River; as contended for by Gr Brit"
1. , , , , , , , , , by the U.S.
The gran colour denotes the Boundary Line as claimed by the T.S.
The red colour denotes the Boundary Line as claimed by G.B.
We the undersigned do hereby certify this to be the Map A
which by the 4th Article of the convention concluded this day between
the U.States and Great Britain has been agreed on by the conten-
ding parties, and which we have accordingly signed this 29th day
of September 1827. -
Albert Gallatin
Chas Grant.
HW. Addington
Lith. by John Childs 90 Nassau St Neo York & Penns Avenue Washington
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VLOEWET
This Map was indertaken with the Approbation and at the Request of
the Lords Commissioners for Trade and Plantations, and is chiefly com-
posed from Draughts, Charts and Actual Surveys of different parts
of His Majesties Colonies and Plantations in America; Great Part of
which have been lately taken by their Lordships Orders, and trans-
mitted to this Office by the Governors of the said Colonies and others.
Fohn Bunalt.
Plantation Office,
Tecretary
Feb) 13th 1453
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