Chapter I (2)

It is maintained on the part of the United States that the territory they held on the continent of North America prior to the purchase of Louisiana and the Floridas was possessed by a title derived from their own Declaration of Independence on the 4th of July, 1776, the assertion of that independence in a successful war, and its acknowledgment by Great Britain as a preliminary to any negotiation for a treaty of peace. It is admitted on the part of Great Britain that a territory designated by certain limits was _granted_ to the United States in the treaty of 1783. As a matter of national pride, the question whether the territory of the original United States was held by the right of war or by virtue of a grant from the British Crown is not unimportant; as a basis of title it has not the least bearing on the subject. From the date of the treaty of 1783 all pretensions of the British Crown to jurisdiction or property within the limits prescribed by the provisions of that instrument ceased, and when a war arose in 1812 between the two nations it was terminated by the treaty of Ghent, in which the original boundaries were confirmed and acknowledged on both sides.

The treaty of 1783, therefore, is, in reference to this territory, the only instrument of binding force upon the two parties; nor can any other document be with propriety brought forward in the discussion except for the purpose of explaining and rendering definite such of the provisions of that treaty as are obscure or apparently uncertain.

The desire of full and ample illustration, which has actuated both parties, has led to the search among neglected archives for documents almost innumerable, and their force and bearing upon the question have been exhibited in arguments of great ability. Such has been the talent shown in this task of illustration and so copious have been the materials employed for the purpose that the great and only important question, although never lost sight of by the writers themselves, has to the eye of the casual observer been completely hidden. In the report under consideration this distinction between treaties of binding force and documents intended for mere illustration has not been regarded, and the vague as well as obviously inaccurate delineations of a French or a Venetian map maker are gravely held forth as of equal value for a basis of argument as the solemn and ratified acts of the two nations.

In pursuance of this desire of illustration, every known document which could in any form support either claim has been advanced and set forth in the statements laid before His Majesty the King of the Netherlands when acting as umpire under the fifth article of the treaty of Ghent. If not yet given entire to the public,[39] they are in the possession of both Governments in a printed form, together with the opinion of the arbiter in respect to them; and although it is necessary that the arguments then adduced in favor of the American claim should be in part repeated, and although new illustrations of the correctness of that argument have since been brought to light, the present document will be confined as closely as possible to the provisions of the treaty itself, and will adduce no more of illustration than is barely sufficient to render the terms of that treaty certain and definite.

[Footnote 39: A considerable part of the papers, together with the argument, has been published by Mr. Gallatin in his Right of the United States to the Northeastern Boundary. New York, 1840. 8 vo. pp. 180.]

The boundaries of the United States are described in the treaty of 1783 in the following words:[40]

[Footnote 40: The words here appearing in italics are not italicized in the original treaty.]

"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 northwest 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; 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 _northwesternmost_ 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 Cataraquy; 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 Brie; 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 communication between that lake and Lake Superior; thence through Lake Superior northward of the Isles Royal and Phelipeaux to the Long Lake; thence through the middle of 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 northwestern point thereof, and from thence on a due west course to 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; south by a line to be drawn due east from the determination of the line last mentioned in the latitude of 31° north of the equator to the middle 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. Marys River, and thence down along the middle of St. Marys 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 from its source _directly north_ to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence; comprehending all islands within 20 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 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."

So far as the present question is concerned, five points of discussion are presented by this article of the treaty of 1783:

I. What stream is to be understood by the name of the river St. Croix?

II. The determination of the line due north from the source of that river.

III. What is the position of the northwest angle of Nova Scotia?

IV. The delineation of the line passing through the highlands from that angle to the northwest head of Connecticut River.

V. What is to be considered as the northwestern head of Connecticut River?

I.--RIVER ST. CROIX.

Doubts in respect to the particular river intended to be understood by the name of the St. Croix having arisen, an article was inserted in the treaty of commerce signed in London in November, 1794, by Lord Grenville on the part of Great Britain and by John Jay on the part of the United States.[41] This article, the fifth of that treaty, provided for the appointment of a joint commission with full powers to decide that question. This commission was constituted in conformity, and the award was accepted by both Governments.[42] The river designated in this award became thenceforth the true St. Croix, however erroneous may have been the grounds on which it was decided so to be. When, therefore, in the fourth article of the treaty of Ghent it is declared that the due north line from the source of the St. Croix has not been surveyed, and when in this and the other articles of the same treaty all other uncertain parts of the boundary are recited, the validity of the decision of the commissioners under the fifth article of Jay's treaty is virtually acknowledged. Nay, more; the acknowledgment is completed by the stipulation in the second article of the treaty of Ghent that "all territory, places, and possessions taken by either party during the war," with certain exceptions, shall be forthwith restored to their previous possessors.[43] The only exceptions are the islands in Passamaquoddy Bay; and had it been believed that any uncertainty in respect to the adjacent territory existed it would not have been neglected. Nay, more; all the settlements lying within the line claimed by Great Britain before the commission created by the treaty of 1794 had been taken, and were in her actual possession at the time the treaty of Ghent took effect, and were forthwith restored to the jurisdiction of the United States. When, also, it became necessary to proceed to the investigation of the second point of the discussion, the agents and surveyors of both parties proceeded as a matter of course to the point marked in 1798 as the source of the St. Croix.[44] This point is therefore fixed and established beyond the possibility of cavil, and the faith of both Governments is pledged that it shall not be disturbed.

[Footnote 41: See Note I, pp. 141,142.]

[Footnote 42: See Note II, p. 142.]

[Footnote 43: See Note III, pp. 142,143.]

[Footnote 44: See Note IV, p. 143.]

II.--DUE NORTH LINE FROM THE SOURCE OF THE ST. CROIX.

The treaty of 1783 provides that the boundary from the source of the St. Croix shall be drawn "directly north." In relation to this expression no possible doubt can arise. It is neither susceptible of more than a single meaning nor does it require illustration from any extrinsic source. The undersigned, therefore, do not consider that so much of the argument of Messrs. Mudge and Featherstonhaugh as attempts to show that this line ought to be drawn in any other direction than due north requires any reply on the part of the United States. Admitting that the words had been originally used as a mistranslation of terms in the Latin grant of James I to Sir William Alexander, the misconception was equally shared by both parties to the treaty of 1783; and it will be shown hereafter that this misconception, if any, had its origin in British official papers. Were it capable of proof beyond all possibility of denial that the limit of the grant to Sir William Alexander was intended to be a line drawn toward the northwest instead of the north it would not affect the question. So far as that grant was used by American negotiators to illustrate the position of the northwest angle of Nova Scotia it would have failed to fulfill the object, but such failure in illustration does not involve the nullity of the treaty itself.

That the translation which has hitherto been universally received as correct of the terms in the grant to Sir William Alexander is the true one, and that the new construction which is now attempted to be put upon it is inaccurate, will be shown in another place,[45] where will also be exhibited an error committed in rendering the sense of another part of that instrument. The consideration of the correctness or incorrectness of the several translations can form no part of the present argument. While, therefore, it is denied that Messrs. Mudge and Featherstonhaugh have succeeded in showing that the grant to Sir William Alexander has been mistranslated, it is maintained that an error in the translation of this document can have no effect in setting aside the simple and positive terms of the treaty of 1783. That treaty and its confirmation in the treaty of Ghent must be admitted to be null and void before that line can be drawn in any other direction than "due north."

[Footnote 45: See Note V, pp. 143-147.]

III.--NORTH WEST ANGLE OF NOVA SCOTIA.

The term northwest angle of Nova Scotia was used in the secret instructions of Congress and is adopted in the treaty of 1783. In the instructions it is named without any explanation, as if it were a point perfectly well known. In one sense it was so, for although it never had been marked by a monument, nor perhaps visited by the foot of man, its position could be laid down upon a map; nay, was so on many existing maps, and the directions for finding it on the ground were clear and explicit. These directions are to be found in the royal proclamation of October, 1763, and in the commission to Montague Wilmot, governor of Nova Scotia, of cotemporaneous date. Any uncertainty in regard to the position of this angle which may have existed in relation to the meaning of the first of these instruments is removed by the act of Parliament of 1774, commonly called the Quebec act.

Before citing these instruments it will be proper to refer to the circumstances under which the two first were issued.

Great Britain, after a successful war, found herself in possession of the whole eastern side of the continent of North America. So much of this as lay to the south of the St. Lawrence and the forty-fifth parallel of north latitude had been previously made the subject of charters from the British Crown under a claim of right from priority of discovery.[46] The possession of this wide tract was not uncontested, and various other European nations had attempted to found settlements within the limits of the British charters. In such cases it was held as a matter of law that where the occupation or defense of the territory granted had been neglected the right had ceased, and the country, when recovered by conquest or restored by treaty, was again vested in the Crown, to be made the subject of new grants or governed as a royal colony. Thus, when the settlements made by the Dutch and Swedes, which by the fortune of war had become wholly vested in Holland, were reduced, the Crown exercised its rights by conveying them to the Duke of York, although covered in a great part, if not wholly, by previous charters; and when these countries were again occupied by the Dutch and restored by the treaty of Breda it was thought necessary that the title of the Duke of York should be restored by a fresh grant. In both of these charters to that prince was included the Province of Sagadahock, within whose chartered limits was comprised the territory at present in dispute. This Province, confined on the sea between the rivers St. Croix and Kennebec, had for its opposite limits the St. Lawrence, or, as the grant expresses it, "extending from the river of Kenebeque and so upward by the shortest course to the river Canada northward." The shortest course from the source of the Kennebec to the St. Lawrence is by the present Kennebec road. This grant therefore covered the whole space along the St. Lawrence from about the mouth of the Chaudiere River[47] to the eastern limit of the grant to Sir William Alexander. By the accession of James II, or, as some maintain, by the act of attainder, it matters not which, this Province reverted to the Crown, and was by it granted, in 1691, to the colony of Massachusetts. In the same charter Nova Scotia also was included. This has been called a war grant, as in fact it was, and the colony of Massachusetts speedily availed themselves of it by conquering the whole of the territory conveyed except the island of Cape Breton. The latter, too, fell before the unassisted arms of the New England Provinces in 1745, at a time when Great Britain was too deeply engaged in the contest of a civil war to give aid either in money or in men to her transatlantic possessions.

[Footnote 46: Sebastian Cabot, in the employ of Henry VII, discovered the continent of North America 24th June, 1497, and explored it from Hudsons Bay to Florida in 1498. Columbus discovered South America 1st August, 1498, while the voyage of Vespucci, whose name has been given to the continent, was not performed until 1499.--HUMBOLDT.]

[Footnote 47: See Note VI, p. 147.]

The colony of Massachusetts, therefore, could not be charged with any want of energy in asserting her chartered rights to the territory in question. It is, in fact, due to her exertions that both Nova Scotia and New Brunswick came at so early a period into the possession of the British Crown. In 1654 the French settlements as far as Port Royal, at the head of the Bay of Fundy, were reduced by Major Sedgwick, but by the treaty of Breda they were restored to France.

In 1690 Sir William Phips, governor of Massachusetts, with a force of 700 men, raised in that colony, again conquered the country, and although on his return the French dislodged the garrison possession was forthwith resumed by an expedition under Colonel Church. Acadie, however, or Nova Scotia, was ceded again to France by the treaty of Ryswick. After several spirited but unsuccessful attempts during the War of the Succession, General Nicholson, with a force of five regiments, four of which were levied in Massachusetts, reduced Port Royal, and by its capitulation the present Provinces of Nova Scotia and New Brunswick were permanently annexed to the British Crown.[48] Finally the militia of Massachusetts, during the War of 1776, took possession of the territory, and occupied it until the date of the treaty of 1783. This occupation was not limited by the St. Croix, or even by the St. John, but included the whole of the southern part of New Brunswick, while the peninsula of Nova Scotia was only preserved to Great Britain by the fortification of the isthmus which unites it to the mainland.[49]

[Footnote 48: Haliburton's History, Vol. I, pp. 83-87.]

[Footnote 49: Haliburton's History, Vol. I, pp. 244-289.]

The recession of Acadie, or Nova Scotia, to France by the treaty of Ryswick divested Massachusetts only of the territory granted her in the charter of 1691 under the latter name. Her war title to Sagadahock was confirmed by a conquest with her own unaided arms; and even the cession of Nova Scotia was a manifest injustice to her, as she was at the moment in full possession of it. It, however, suited the purpose of Great Britain to barter this part of the conquest of that colony for objects of more immediate interest.

Admitting that England did convey a part or the whole of Sagadahock to France under the vague name of Acadie or Nova Scotia,[50] the conquest by Massachusetts in 1710 renewed her rights to this much at least, and although the Crown appropriated to itself the lion's share of the spoils by making Nova Scotia a royal province, it did not attempt to disturb her possession of Sagadahock. So far from so doing, the commission of the royal governors was limited to the west by the St. Croix, although it was stated in a saving clause that the Province of Nova Scotia extended of right to the Penobscot. From that time until the breaking out of the Revolutionary War, a space of more than sixty years, the Province of Sagadahock was left in the undisturbed possession of Massachusetts under the charter of 1691.

[Footnote 50: See Note VII, pp. 147, 148.]

In defiance of this charter the French proceeded to occupy the right bank of the St. Lawrence, which at the time of the capture of Quebec and the cession in the treaty of 1763 was partially held by settlements of Canadians. The Crown therefore acted upon the principle that the right of Massachusetts to the right bank of the St. Lawrence had thus become void, and proceeded by proclamation to form the possessions of France on both banks of the St. Lawrence into a royal colony under the name of the Province of Quebec.

This was not done without a decided opposition on the part of Massachusetts, but any decision in respect to her claims was rendered needless by the breaking out of the War of Independence. It is only proper to remark that this opposition was in fact made and that her claim to the right bank of the St. Lawrence was only abandoned by the treaty of 1783. The country of which it was intended to divest her by the proclamation of 1763 is described in a letter of her agent, Mr. Mauduit, to the general court of that colony as "the narrow tract of land which lies beyond the sources of all your rivers and is watered by those which run into the St. Lawrence."

It is assigned by him as a reason why the Province of Massachusetts should assent to the boundary assigned to the Province of Quebec by the proclamation that "it would not be of any great consequence to you" (Massachusetts), "but is absolutely necessary to the Crown to preserve the continuity of the Province of Quebec." The part of the Province of Quebec whose continuity with the rest of that colony was to be preserved is evidently the district of Gaspe, of which Nova Scotia, a royal colony, was divested by the same proclamation. For this continuity no more was necessary than a road along the St. Lawrence itself, and the reason would have been absurd if applied to any country lying beyond the streams which fall into that river, for up to the present day no communication between parts of Canada exists through any part of the disputed territory. The narrow territory thus advised to be relinquished extends, according to the views of Messrs. Mudge and Featherstonhaugh, from the Great Falls of the St. John to Quebec, a distance in a straight line of 160 miles. It has a figure not far from triangular, of which this line is the perpendicular and the shore of the St. Lawrence from the Chaudiere to the Metis the base. It contains about 16,000 square miles. It would have been a perversion of language in Mr. Mauduit to describe this to his employers as a narrow tract. But the space whose cession he really intended to advise is in every sense a narrow tract, for its length along the St. Lawrence is about 200 miles, and its average breadth to the sources of the streams 30. It contains 6,000 square miles, and is described by him in a manner that leaves no question as to its extent being "watered by streams" which "run into the St. Lawrence." It therefore did not include any country watered by streams which run into the St. John.

It is believed that this is the first instance in which the term _narrow_ has ever been applied to a triangle almost right angled and nearly isosceles, and it is not a little remarkable that this very expression was relied upon in the statement to the King of the Netherlands as one of the strongest proofs of the justice of the American claim.

Admitting, however, for the sake of argument, that the Crown did demand this territory, and that the mere advice of an agent without powers was binding on Massachusetts, the fact would have no direct bearing upon the point under consideration. The relinquishment by Massachusetts of the whole of the territory west of the meridian of the St. Croix would not have changed the position of the northwest angle of Nova Scotia, nor the title of the United States collectively under the treaty of 1783 to a boundary to be drawn from that angle, however it might have affected the right of property of that State to the lands within it.

And here it is to be remarked that the Government of the United States is two-fold--that of the individual States and that of the Federal Union. It would be possible, therefore, that all right of property in unseated lands within a State's jurisdiction might be in the General Government, and this is in fact the case in all the new States. Even had Massachusetts divested herself of the title (which she has not) the treaty of 1783 would have vested it in the Confederation. She had at least a color of title, under which the Confederation claimed to the boundaries of Nova Scotia on the east and to the southern limits of the Province of Quebec on the north, and this claim was allowed by Great Britain in the treaty of 1783 in terms which are at least admitted to be identical in meaning with those of the proclamation creating the latter Province.[51]

[Footnote 51: Report of Messrs. Featherstonhaugh and Mudge, p. 6.]

To illustrate the subject further:

Of the seventeen British colonies in North America, thirteen succeeded in asserting their independence; the two Floridas were conquered and ceded to Spain; while of her magnificent American domain only Quebec and Nova Scotia were left to Great Britain. The thirteen colonies, now independent States, claimed all that part of the continent to the eastward of the Mississippi and north of the bounds of Florida which was not contained within the limits of the last-named colonies, and this claim was fully admitted by the boundary agreed to in the treaty of 1783. Within the limits thus assigned it was well known that there were conflicting claims to parts which had more than once been covered by royal charters; it was even possible that there were portions of the wide territory the right to which was asserted by the United States and admitted by Great Britain that had not been covered by any royal grant; but the jurisdiction in respect to disputed rights and the title to land not conveyed forever ceased to be in the British Crown--first by a successful assertion of independence in arms, and finally by the positive terms of a solemn treaty.

If it should be admitted, for argument's sake, that the claim of Massachusetts, as inherited by the State of Maine, to the disputed territory is unfounded, it is a circumstance that can not enter into a discussion between Great Britain and the United States of America. Massachusetts did claim, under at least the color of a title, not merely to "the highlands," but to the St. Lawrence itself, and the claim was admitted as far as the former by the treaty of 1783. If it should hereafter appear that this claim can not be maintained, the territory which is not covered by her title, if within the boundary of the treaty of 1783, can not revert to Great Britain, which has ceded its rights to the thirteen independent States, but to the latter in their confederate capacity, and is thus the property of the whole Union. As well might Great Britain set up a claim to the States of Alabama and Mississippi, which, although claimed by the State of Georgia, were found not to be covered by its royal charter, as to any part of the territory contained within the line defined by the treaty of 1783, under pretense that the rights of Massachusetts are not indefeasible.

While, therefore, it is maintained that whether the title of Massachusetts be valid or not is immaterial to the present question, it may be further urged that not even the shadow of a pretense existed for divesting her of her rights by the proclamation of 1763, except to territory which by neglect she had permitted France to occupy. On this point the French are the best authority, for it can not be pretended that the Crown of England intended in forming the Province of Quebec to go beyond the utmost limits of the claim of France to her colony of Canada. The assertions on the part of France in the argument preceding the War of 1756 were:

First. That both banks of the St. Lawrence are included in Canada.

Second. That with the exception of Miscou and Cape Breton, her grants extended 10 leagues from the river.

Third. That the commissions of the governors of Canada in the most formal and precise manner extended their jurisdiction to the sources of the rivers which discharge themselves into the St. Lawrence.

Now the distance of 10 French leagues and that of the sources of the rivers, on an average, are nearly identical, and this narrow tract, of which alone the Crown could with any shadow of justice assume the right of disposing, is that of which Massachusetts was intended to be divested by the proclamation of 1763.

It was because Great Britain held that these claims on the part of France were too extensive that the War of 1756 was waged. In this war at least one-half of the force which under Wolfe took Louisburg and reduced Quebec, and under Amherst forced the French armies in Canada to a capitulation, was raised and paid by the colonies. The creation of the Province of Quebec, covering a part of their chartered limits, was therefore a just subject of complaint.

The bounds assigned to the new Province of Quebec to the south by the proclamation of 7th October, 1763, are as follows:

"The line, crossing the river St. Lawrence and the Lake Champlain in 45° of north latitude, passes along the highlands which divide the rivers that empty themselves into the St. Lawrence from those which fall into the sea, and also along the north coast of the Bay des Chaleurs and the Gulf of St. Lawrence to Cape Rosieres," etc.

In the same month of October, 1763, the limits of the royal Province of Nova Scotia are fixed, in the commission to Governor Wilmot, on the west "by the said river St. Croix to its source, and by a line drawn due north from thence to the southern boundary of our Province of Quebec; to the northward, by the same boundary, as far as the western extremity of the Bay des Chaleurs."

Here, then, we find the first mention in an English dress of the line to be drawn due north from the source of the St. Croix. There is no evidence that it was a translation of the terms in the grant to Sir William Alexander, but if it were it was made not by Americans, but by Englishmen; and not only made, but set forth under the high authority of the royal sign manual and authenticated by the great seal of the United Kingdom of England and Scotland.

The due north line from the source of the St. Croix, meeting the south bounds of the Province of Quebec, forms two angles. One of these was the northeast angle of the Province of Sagadahock; the other is the northwest angle of Nova Scotia. It aright be debated which of the streams that fall into Passamaquoddy Bay was the true St. Croix, but such a question could be settled by reference to evidence, and has been thus settled by the award of the commissioners under the fifth article of Jay's treaty. Among the many branches of a stream it may for a moment be doubted which is to be considered as its principal source, but this can be ascertained by proper methods, and it has been ascertained and marked with a monument by the same commissioners. The tracing of a meridian line may be a difficult operation in practical surveying, but it can be effected by proper instruments and adequate skill, and this task has in fact been performed by one of the present commissioners, after being attempted by the surveyors under the fifth article of the treaty of Ghent. The highlands are defined in the commission of Governor Wilmot and the proclamation of 1763 beyond the possibility of doubt. They are on the north shore of the Bay of Chaleurs as described in the one instrument, and on the western extremity of that bay as described by the other. They can therefore be found, and they have been found.

The Congress of 1779 and the framers of the treaty of 1783 were therefore warranted in speaking of the northwest angle of Nova Scotia as if it were a known point. It could have been laid down with precision on any good map; it could be discovered by the use of adequate methods and the expenditure of a sufficient appropriation; it was, in fact, as well known as the forty-fifth and thirty-second parallels of latitude, which are named in the same article of the treaty, or as the boundaries of very many of the States which had united in the Confederation. These were defined by the course and sources of rivers--by parallels of latitude and circles of longitude, either of indefinite extent or setting out from some prescribed point whose position was to be determined. At the time of making these grants, as in the case before us, many of the boundaries had never been visited by civilized men. Some of these lines had, indeed, been sought and traced upon the ground in pursuance of orders from the privy council of Great Britain or the high court of chancery, and the recollection of the operation was fresh in the memory of both parties. Thus in 1750 it was ordered by the latter tribunal that the boundary on the lower counties on the Delaware (now the State of that name) and the Province of Maryland should be marked out. The boundary was an arc of a circle described around the town of Newcastle, with a given radius, and a meridian line tangent thereto. This was a far more difficult operation than to draw a meridian line from a given point, such as the source of a river. It was thought in 1763 worthy of the attention of the first assistant in the Royal Observatory at Greenwich, and the American Rittenhouse was associated with him. This operation was not only of great contemporary fame, but is still quoted in English books among the data whence we derive our knowledge of the magnitude and figure of the earth. So also the same astronomer (Mason) had but a few years before the War of Independence commenced the tracing of a parallel of latitude from the former line to the westward, thus marking the respective limits of Pennsylvania, Maryland, and Virginia. With such examples before them the framers of the treaty of 1783 were warranted in considering the northwest angle of Nova Scotia as a point sufficiently definite to be made not merely one of the landmarks of the new nation, but the corner at which the description of its boundaries should begin. It has been well remarked by one of the commentators[52] on the report of Messrs. Featherstonhaugh and Mudge that if the treaty of 1783 be a grant the grantors are bound by rule of law to mark out that corner of their _own land_ whence the description of the grant commences. The British Government therefore ought, if it be, as it is maintained on its part, a grant, to have traced the line of highlands dividing their Provinces of Nova Scotia and Canada. Had this been done in conformity with the proclamation of 1763 and the commission to Governor Wilmot, the northwest angle of Nova Scotia would be given by the trace of the meridian of the St. Croix. So far from doing this, the question has been complicated by the denial that the boundaries defined in that proclamation and in the treaty of 1783 were intended to be identical. The argument on this point was so ingenious that the arbiter under the fifth article of the treaty of Ghent did not consider the American case as made out,[53] and this doubt was the principal ground on which his decision rested. It is therefore an earnest of a more favorable state of feeling that the sophistry with which this fact had been veiled, at least in part, is now withdrawn, and that the commission whose report is under consideration frankly admit this identity.[54] This admission being made, it is obvious that the origin of the highlands of the treaty must be sought on the north shore of the Bay des Chaleurs and at its western extremity, and it follows that the point where this line of highlands is cut by the meridian of the monument at the source of the St. Croix is the northwest angle of Nova Scotia of the treaty of 1783, and must lie to the north of the Restigouche, or in the very spot claimed by the United States.

[Footnote 52: Hon. John Holmes, of Maine.]

[Footnote 53: See Note VIII, p. 148.]

[Footnote 54: Report of Messrs. Featherstonhaugh and Mudge, pp. 6, 23.]

The British Government has not only failed in marking out the corner of their territory at which the boundary of the United States begins, but has in practice adopted a very different point as the northwest angle of the Province of New Brunswick, which now occupies the place of ancient Nova Scotia in its contiguity to the American lines. Up to the time of the discussion before the King of the Netherlands the commissions of the governors of New Brunswick had been, so far as the western and northern boundaries are concerned, copies of that to Governor Wilmot. The undersigned have no means of ascertaining when or how the form of these commissions was changed, but it was found during the exploration of the country that the jurisdiction of New Brunswick, limited at least to the north of the St. John by the exploring meridian line, did not leave the Bay of Chaleurs at its western extremity and follow thence the old bounds of the Province of Quebec. It, on the contrary, was ascertained that it was limited by the Restigouche as far as the confluence of its southwestern branch, formerly known by the name of Chacodi, and thence followed the latter up to the point where it is crossed by the exploring meridian line. On all the territory thus severed from the ancient domain of Nova Scotia permits to cut timber were found to have been issued by Canadian authorities, and the few settlers derived their titles to land from the same source.

Although this demarcation involves a double deviation from the proclamation of 1763 (first, in following a river instead of highlands; second, in taking a small branch instead of pursuing the main supply of the Bay of Chaleurs), the northwest angle of Nova Scotia may be considered as at last fixed by British authority at a point many miles north of the point claimed to be such in the statements laid before the King of the Netherlands on the part of Great Britain, and 48 miles to the north of where the line of "abraded highlands" of Messrs. Featherstonhaugh and Mudge crosses the St. John. Were it not that the American claim would be weakened by any change in the strong ground on which it has always rested, it might be granted that this is in fact the long-lost northwest angle of Nova Scotia, and the highlands allowed to be traced from that point through the sources of the branches of the St. John and the St. Lawrence.

In proof of the position now assigned to this angle of New Brunswick, and consequently of ancient Nova Scotia, in the absence of documents which the archives of Great Britain alone can furnish, the map published by the Society for the Encouragement of Useful Knowledge, the several maps of the surveyor-general of the Province of Canada, and the most recent map of the Provinces of Nova Scotia and New Brunswick, by John Wyld, geographer to the Queen of Great Britain, may be cited.

It may therefore be concluded that the northwest angle of Nova Scotia is no longer an unknown point. It can be found by a search conducted in compliance with the proclamation of 1763 and the contemporaneous commission of Governor Wilmot, and the researches of the present commission show that it can not be far distant from the point originally assigned to it in the exploring meridian line. The identity of the first of these documents with the boundary of the treaty of 1783 is admitted, and the latter is word for word the same with the description of the eastern boundary of the United States in the same treaty. Moreover, a northwest angle has been assigned to the Province of New Brunswick by British authority, which, did it involve no dereliction of principle, might without sensible loss be accepted on the part of the United States.

IV.--HIGHLANDS OF THE TREATY OF 1783.

The highlands of the treaty of 1783 are described as those "which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean." It has been uniformly and consistently maintained on the part of the United States that by the term "highlands" was intended what is in another form of the same words called the height of land. The line of highlands in this sense was to be sought by following the rivers described in the treaty to their source and drawing lines between these sources in such manner as to divide the surface waters. It was believed that the sources of such rivers as the Connecticut and the St. John must lie in a country sufficiently elevated to be entitled to the epithet of highlands, although it should appear on reaching it that it had the appearance of a plain. Nay, it was even concluded, although, as now appears, incorrectly--and it was not feared that the conclusion would weaken the American argument--that the line from the northwest angle of Nova Scotia, at least as far as the sources of Tuladi, did pass through a country of that description. Opposite ground was taken in the argument of Great Britain by her agent, but however acute and ingenious were the processes of reasoning by which this argument was supported, it remained in his hands without application, for the line claimed by him on the part of his Government was one having the same physical basis for its delineation as that claimed by the agent of the United States, namely, one joining the culminating points of the valleys in which streams running in opposite directions took their rise. The argument appears to have been drawn while he hoped to be able to include Katahdin and the other great mountains in that neighborhood in his claimed boundary, and he does not appear to have become aware how inapplicable it was in every sense to the line by which he was, for want of a better, compelled to abide. The British Government, however, virtually abandoned the construction of their agent in the convention signed in London the 27th September, 1827.[55]

[Footnote 55: See Note IX, p. 148.]

In this it was stipulated that Mitchell's and Map A should be admitted to the exclusion of all others "as the only maps that shall be considered as evidence" of the topography of the country, and in the latter of these maps, constructed under the joint direction of the British and American negotiators by the astronomer of the British Government, it was agreed that nothing but the water courses should be represented. Finally, it was admitted in the report of Messrs. Featherstonhaugh and Mudge that the terms highlands and height of land are identical. The decision of the King of the Netherlands, to which Great Britain gave her assent in the first instance, recognizes the correctness of the views entertained in the American statements.[56] All discussion on this subject is, however, rendered unnecessary by the knowledge which the undersigned have obtained of the country. The line surveyed by them not only divides rivers, but possesses in a preeminent degree the character by which in the British argument highlands are required to be distinguished.

[Footnote 56: See Note X, pp. 148, 149.]

It is sufficient for the present argument that the identity of the lines pointed out by the proclamation of 1763 and the act of 1774 with the boundary of the treaty of 1783 be admitted. Such has been the uniform claim of the Government of the United States and the State of Massachusetts, and such is the deliberate verdict of the British commissioners.[57] The words of the proclamation of 1763 have already been cited. By reference to them it will be seen that the origin of "the highlands" is to be sought on the _north_ shore of the Bay of Chaleurs. If they are not to be found there, a gap exists in the boundary of the proclamation, which it is evident could not have been intended. It has been thought by some that the gap did actually exist, but this idea was founded on an imperfect knowledge of the country. The Bay of Chaleurs seems, in fact, to have been better known to the framers of the proclamation of 1763 and the act of 1774 than to any subsequent authorities, whether British or American. Researches made in the year 1840 show that at the head of the tide of the Bay of Chaleurs a mountain rises immediately on the northern bank, which from its imposing appearance has been called by the Scotch settlers at its foot Ben Lomond. This, indeed, has by measurement been found to be no more than 1,024 feet in height, but no one can deny its title to the name of a highland. From this a continuous chain of heights has been ascertained to exist, bounding in the first instance the valley of the Matapediac to the sources of that stream, which they separate from those of the Metis. The height of land then passes between the waters of Metis and Restigouche, and, bending around the sources of the latter to the sources of the Rimouski, begins there to separate waters which fall into the St. Lawrence from those which fall into the St. John, which they continue to do as far as the point where they merge in the line admitted by both parties.

[Footnote 57: Report of Featherstonhaugh and Mudge, pp. 6, 23.]

These highlands have all the characteristics necessary to constitute them the highlands of the treaty. Throughout their whole northern and western slopes flow streams which empty themselves into the St. Lawrence. Beginning at the Bay of Chaleurs, they in the first place divide, as it is necessary they should, waters which fall into that bay; they next separate the waters of Restigouche from those of Metis; they then make a great detour to the south and inclose the valley of Rimouski, separating its waters from those of Matapediac and Restigouche, the Green River of St. John and Tuladi; they next perform a circuit around Lake Temiscouata, separating its basin from those of the Otty and Trois Pistoles, until they reach the Temiscouata portage at Mount Paradis. This portage they cross five times, and finally, bending backward to the north, inclose the stream of the St. Francis, whose waters they divide from those of Trois Pistoles, Du Loup, and the Green River of the St. Lawrence. Leaving the Temiscouata portage at the sixteenth milepost, a region positively mountainous is entered, which character continues to the sources of the Etchemin. It there assumes for a short space the character of a rolling country, no point in which, however, is less than 1,200 feet above the level of the sea. It speedily resumes a mountainous character, which continues unaltered to the sources of the Connecticut.

Now it is maintained that all the streams and waters which have been named as flowing from the southern and eastern sides of this line are in the intended sense of the treaty of 1783 rivers which empty themselves into the Atlantic. The first argument adduced in support of this position is that the framers of that treaty, having, as is admitted, Mitchell's map before them, speak only of two classes of rivers--those which discharge themselves into the St. Lawrence River and those which fall into the Atlantic Ocean; yet upon this map were distinctly seen the St. John and the Restigouche. The latter, indeed, figures twice--once as a tributary to the Bay of Miramichi and once as flowing to the Bay of Chaleurs.[58] It can not reasonably be pretended that men honestly engaged in framing an article to prevent "all disputes which might arise in future" should have intentionally passed over and left undefined these important rivers, when by the simplest phraseology they might have described them had they believed that in any future time a question could have arisen whether they were included in one or the other of the two classes of rivers they named. Had it been intended that the due north line should have stopped short of the St. John, the highlands must have been described as those which divide rivers which fall into the St. Lawrence _and the St. John_ from those which fall into the Atlantic Ocean. The mouth of the St. Lawrence had been defined in the proclamation of 1763 by a line drawn from the river St. John (on the Labrador coast) to Cape Rozier. If, then, it had been intended that the meridian line should not have crossed the Restigouche, the phraseology must have been highlands which divide rivers which fall into the river _and_ Gulf of St. Lawrence from those which fall into the Atlantic Ocean. Where such obvious modes of expressing either of these intentions existed, it is not to be believed that they would have been omitted; but had they been proposed to be introduced the American negotiators would have been compelled by their instructions to refuse them. Such expressions would have prescribed a boundary different not only in fact, but in terms, from that of the proclamation of 1763 and the contemporaneous commission to Governor Wilmot. Either, then, the British plenipotentiaries admitted the American claim to its utmost extent or they fraudulently assented to terms with the intention of founding upon them a claim to territory which if they had openly asked for must have been denied them. The character of the British ministry under whose directions that treaty was made forbids the belief of the latter having been intended. The members of that ministry had been when in opposition the constant advocates of an accommodation with the colonies or of an honorable peace after all hopes of retaining them in their allegiance had ceased. They showed on coming into power a laudable anxiety to put an end to the profitless effusion of human blood, and they wisely saw that it would be of more profit to their country to convert the new nation into friends by the free grant of terms which sooner or later must have been yielded than to widen the breach of kindred ties by an irritating delay. The debates which ensued in the British Parliament when the terms of the treaty were made known show the view which the party that had conducted the war entertained of this question. The giving up of the very territory now in dispute was one of the charges made by them against their successors, and that it had been given up by the treaty was not denied. Nay, the effect of this admission was such as to leave the administration in a minority in the House of Commons, and thus became at least one of the causes of the resignation of the ministry[59] by which the treaty had been made. At this very moment more maps than one were published in London which exhibit the construction then put upon the treaty by the British public. The boundary exhibited upon these maps is identical with that which the United States now claim and have always claimed.

[Footnote 58: See Note XI, p. 149.]

[Footnote 59: Hansard's Parliamentary Register for 1783.]

The full avowal that the boundary of the treaty of 1783 and of the proclamation of 1763 and act of 1774 are identical greatly simplifies the second argument. It has been heretofore maintained on the part of Great Britain that the word "sea" of the two latter-named instruments was not changed in the first to "Atlantic Ocean" without an obvious meaning. All discussion on this point is obviated by the admission. But it is still maintained that the Bay of Fundy is not a part of the Atlantic Ocean because it happens to be named in reference to the St. Croix in the same article of the treaty. To show the extent to which such an argument, founded on a mere verbal quibble, may be carried, let it be supposed that at some future period two nations on the continent of North America shall agree on a boundary in the following terms: By a line drawn through the Mississippi from its mouth in the Gulf of Mexico to its source; thence a parallel of latitude until it meet the highlands which divide the waters that empty themselves into the Pacific Ocean from those which fall into the Atlantic. Could it be pretended that because the mouth of the Mississippi is said to be in the Gulf of Mexico the boundary must be transferred from the Rocky Mountains to the Alleghanies? Yet this would be as reasonable as the pretensions so long set up by the British agents and commissioners.