Chapter I (3)

It can not be denied that the line claimed by the United States fulfills at least one of the conditions. The streams which flow from one side of it fall without exception into the river St. Lawrence. The adverse line claimed by Great Britain in the reference to the King of the Netherlands divides until within a few miles of Mars Hill waters which fall into the St. John from those of the Penobscot and Kennebec. The latter do not discharge their waters directly into the ocean, but Sagadahock and Penobscot bays intervene, and the former falls into the Bay of Fundy; hence, according to the argument in respect to the Bay of Fundy, this line fulfills neither condition.

The line of Messrs. Featherstonhaugh and Mudge is even less in conformity to the terms of the treaty. In order to find mountains to form a part of it they are compelled to go south of the source of branches of the Penobscot; thence from mountains long well known, at the sources of the Alleguash, well laid down on the rejected map of Mr. Johnson, it becomes entangled in the stream of the Aroostook, which it crosses more than once. In neither part does it divide waters at all. It then, as if to make its discrepancy with the line defined in the proclamation of 1763 apparent, crosses the St. John and extends to the _south_ shore of the Bay of Chaleurs, although that instrument fixes the boundary of the Province of Quebec on the north shore of the bay. In this part of its course it divides waters which fall into the said bay from those which fall into the St. John. But the proclamation with whose terms this line is said to be identical directs that the highlands shall divide waters which fall into the St. Lawrence from those which fall into the sea. If the branches of the Bay of Chaleurs fulfill the first condition, which, however, is denied, the St. John must fulfill the latter. It therefore falls into the Atlantic Ocean, and as the identity of the boundary of the treaty with that of the proclamation of 1763 and act of 1774 is admitted, then is the St. John an Atlantic river, and the line claimed by the United States fulfills both conditions, and is the only line to the west of the meridian of the St. Croix which can possibly do so.

The choice of a line different from that presented to the choice of the King of the Netherlands is no new instance of the uncertainty which has affected all the forms in which Great Britain has urged her claim.

In fact, nothing shows more conclusively the weakness of the ground on which the British claim rests than the continual changes which it has been necessary to make in order to found any feasible argument upon it.[60] In the discussion of 1798 it was maintained on the part of Great Britain that the meridian line must cross the St. John River; in the argument before the commissioners under the fifth article of the treaty of Ghent it was denied that it ever could have been the intention of the framers of the treaty of 1783 that it should. Yet the mouthpiece by which both arguments were delivered was one and the same person. The same agent chose as the termination of what he attempted to represent as a continuous range of hills an isolated mountain, Mars Hill; and the commissioners whose report is under consideration place a range of abraded highlands, "the maximum axis of elevation," in a region over which British engineers have proposed to carry a railroad as the most level and lowest line which exists between St. Andrews and Quebec.[61]

[Footnote 60: See Note XII, p. 149.]

[Footnote 61: Prospectus of St. Andrews and Quebec Railroad, 1836; and Survey of Captain Yule, 1835.]

On the other hand, the American claim, based on the only practicable interpretation of the treaty of 1783, has been consistent throughout: "Let the meridian line be extended until it meets the southern boundary of the Province of Quebec, as defined by the proclamation of 1763 and the act of Parliament of 1774."

No argument can be drawn against the American claim from the secret instructions of Congress dated August, 1779. All that is shown by these instructions is the willingness to accept a more convenient boundary--one defined by a great natural feature, and which would have rendered the difficult operation of tracing the line of highlands and that of determining the meridian of the St. Croix by astronomic methods unnecessary. The words of the instructions are:

"And east by a line to be drawn along the middle of the St. John from its source to its mouth in the Bay of Fundy, _or_ by a line to be settled and adjusted between that part of the State of Massachusetts Bay formerly called the Province of Maine and the colony of Nova Scotia, agreeably to their respective rights, comprehending all islands within 20 leagues 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 part shall respectively touch the Bay of Fundy and the Atlantic Ocean."

The proposal in the first alternative was to appearance a perfectly fair one. From an estimate made by Dr. Tiarks, the astronomer of Great Britain under the fifth article of the treaty of Ghent, in conformity with directions from Colonel Barclay, the British commissioner, it was ascertained that the whole disputed territory contained 10,705 square miles; that the territory bounded by the St. John to its mouth contained 707 square miles less, or 9,998 square miles. The difference at the time was probably believed to be insensible. The first alternative was, however, rejected by Great Britain, and obviously on grounds connected with a difference in supposed advantage between the two propositions. The American commissioners were satisfied that they could urge no legal claim along the coast beyond the river St. Croix; they therefore treated on the other alternative in their instructions--the admitted limits between Massachusetts and Nova Scotia. Even in the former alternative, Nova Scotia would still have had a northwest angle, for the very use of the term shows that by the St. John its northwestern and not the southwestern branch was intended.

At that moment, when the interior of the country was unknown, the adoption of the St. John as the boundary, even admitting that the Walloostook, its southwestern branch, is the main stream, would have given to the United States a territory of more immediate value than that they now claim. For this very reason the proposition was instantly rejected by Great Britain, and the State of Massachusetts was forced to be contented with the distant region now in debate--a region then believed to be almost inaccessible and hardly fit for human habitation.

Even now, were there not vested private rights on both sides which might render such a plan difficult of application, the undersigned would not hesitate to recommend that this line should be accepted in lieu of the one which is claimed under the treaty of 1783.

It is finally obvious, from the most cursory inspection of any of the maps of the territory in question, that the line claimed for Great Britain in the argument before the King of the Netherlands fulfills no more than one of the two conditions, while that of Messrs. Featherstonhaugh and Mudge fulfills neither; and as the line claimed on the part of the United States is denied to be capable of meeting the terms of the treaty of 1783 by Great Britain, there is no line that, in conformity with the British argument, can be drawn within the disputed territory or its vicinity that will comply with either of the conditions. This is as well and as distinctly shown in the map of Mitchell as in the map of the British commission. It would therefore appear, if, these views be correct, that the framers of the treaty of 1783 went through the solemn farce of binding their respective Governments to a boundary which they well knew did not and could not exist.

V.--NORTHWEST HEAD OF CONNECTICUT RIVER.

The true mode of determining the most northwesterly of any two given points need no longer be a matter of discussion. It has already been a matter adjudicated and assented to by both Governments, in the case of the Lake of the Woods. The point to be considered as most to the northwest is that which a ruler laid on a map drawn according to Mercator's projection in a direction northeast and southwest and moved parallel to itself toward the northwest would last touch. In this view of the subject the Eastern Branch of the Connecticut, which forms the lake of that name, is excluded, for its source, so far from lying to the northwest of those of the other two branches which have been explored, actually lies to the south of the source of the Indian Stream. The question must therefore lie between the two others, and it is as yet impossible to decide which of them is best entitled to the epithet, as their sources lie very nearly in the same northeast and southwest rhomb line. Another circumstance would, however, render the decision between them easy. The forty-fifth parallel of latitude, as laid out by the surveyors of the Provinces of Quebec and New York in conformity with the proclamation of 1763, crosses Halls Stream above its junction with the united current of the other two. In this case the latter is the Connecticut River of the treaty of 1783, and Halls Stream, which has not yet joined it, must be excluded. The parallel, as corrected by the united operations of the British and American astronomers under the fifth article of the treaty of Ghent, does not touch Halls Stream, and the Connecticut River, to which it is produced, is the united current of the three streams. If, then, the corrected parallel should become the boundary between the United States and the British Provinces, Halls Stream must become one of those the claim of whose source to the title of the north-westernmost head of Connecticut River is to be examined. And here it may be suggested, although with the hesitation that is natural in impeaching such high authority, that the commissioners under the fifth article of the treaty of Ghent in all probability misconstrued that instrument when they reopened the question of the forty-fifth parallel. It can not be said that the forty-fifth degree of latitude had "_not been surveyed_" when it is notorious that it had been traced and marked throughout the whole extent from St. Regis to the bank of the Connecticut River.

In studying, for the purpose of illustration, the history of this part of the boundary line it will be found that a change was made in it by the Quebec act of 1774. The proclamation of 1763 directs the forty-fifth parallel to be continued only until it meets highlands, while in that bill the Connecticut River is made the boundary of the Province of Quebec. Now the earlier of these instruments was evidently founded upon the French claim to extend their possession of Canada 10 leagues from the St. Lawrence River, and from the citadel of Quebec, looking to the south, are seen mountains whence rivers flow to the St. Lawrence. On their opposite slope there was a probability that streams might flow to the Atlantic. These mountains, however, are visibly separated from those over which the line claimed by the United States runs by a wide gap. This is the valley of the Chaudiere; and the St. Francis also rises on the southeastern side of these mountains and makes its way through them. It is not, therefore, in any sense a dividing ridge. Yet under the proclamation of 1763 the Provinces of New York and New Hampshire claimed and were entitled to the territory lying behind it, which is covered by their royal charters. The Quebec act, it would appear, was intended to divest them of it, and according to the construction of the treaty of 1783 now contended for the United States acquiesced in this diminution of the territory of those members of the Union. If, however, it be true, as maintained by Messrs. Featherstonhaugh and Mudge, that the highlands seen to the south of Quebec are a portion of the ridge seen from southeast to northeast, and if, as they maintain, so deep and wide a valley as that of the St. John is no disruption of the continuity of highlands, it would be possible to show that the highlands of the treaty of 1783 are made up of these two ridges of mountains and that the United States is entitled to the whole of the eastern townships. This range of highlands would coincide with the terms of the proclamation of 1763 by terminating on the north shore of the Bay of Chaleurs, while the abraded highlands of Messrs. Featherstonhaugh and Mudge terminate on its south shore. In fact, there is no step in their argument which might not be adduced to support this claim, nor any apparent absurdity in preferring it which would not find its parallel in one or other of the positions they assume.

In this view of the history of this part of the line it becomes evident, however, that in divesting the Provinces of New York and New Hampshire by the Quebec act of territory admitted to belong to them in the proclamation of 1763 the British Parliament must have intended to make the encroachment as small as possible, and the first important branch of the Connecticut met with in tracing the forty-fifth parallel must have been intended. This intention is fully borne out by the words of the treaty of 1783, which chose from among the branches of the Connecticut that whose source is farthest to the northwest.

It has therefore been shown in the foregoing statement--

1. That the river to be considered as the St. Croix and its true source have been designated by a solemn act, to which the good faith of the majesty of Great Britain and of the people of the United States is pledged, and can not now be disturbed.

2. That the boundary line must, in compliance with the provisions of the treaty of 1783, be drawn due north from the source of that river, and in no other direction whatever.

3. That the northwest angle of Nova Scotia was a point sufficiently known at the date of the treaty of 1783 to be made the starting point of the boundary of the United States; that it was both described in the treaty and defined, without being named in previous official acts of the British Government, in so forcible a manner that no difficulty need have existed in finding it.

4. That the line of highlands claimed by the United States is, as the argument on the part of Great Britain has maintained it ought to be, in a mountainous region, while that proposed by Messrs. Featherstonhaugh and Mudge does not possess this character; that it is also, in the sense uniformly maintained by the United States, the height of land, which that of Messrs. Featherstonhaugh and Mudge is not; that it fulfills in every sense the conditions of the proclamation of 1763, the Quebec act of 1774, and the treaty of 1783, which no other line that can possibly be drawn in the territory in question can perform.

5. That as far as the Indian Stream and that flowing through Lake Connecticut are concerned, the source of the former must in the sense established by the assent of both parties be considered as the northwestern source of the Connecticut River, but that if the old demarcation of the forty-fifth parallel be disturbed the question must lie between the sources of Halls and of Indian streams.

All which is respectfully submitted.

JAS. RENWICK
JAMES D. GRAHAM,
A. TALCOTT,
_Commissioners_.

_Note I_.

[Treaty of 1794, Article V.]

Whereas doubts have arisen what river was truly intended under the name of the river St. Croix mentioned in the said treaty of peace, and forming a part of the boundary therein described, that question shall be referred to the final decision of commissioners to 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 consent of the Senate thereof, and the said two commissioners shall agree on the choice of a third, or, if they can not so agree, they shall each propose one person, and of the two names so proposed one shall be drawn by lot in the presence of the two original commissioners; and the three commissioners so appointed shall be sworn impartially to examine and decide the said question according to such evidence as shall respectively be laid before them on the part of the British Government and of the United States. The said commissioners shall meet at Halifax, and shall have power to adjourn to such other place or places as they shall think fit. They shall have power to appoint a secretary and to employ such surveyors or other persons as they shall judge necessary. The said commissioners shall, by a declaration under their hands and seals, decide what river is the river St. Croix intended by the treaty. The said declaration shall contain a description of the said river and shall particularize the latitude and longitude of its mouth and of its source. Duplicates of this declaration and of the statements of their accounts and of the journal of their proceedings shall be delivered by them to the agent of His Majesty and to the agent of the United States who may be respectively appointed and authorized to manage the business on behalf of the respective Governments. 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 difference between them.

_Note II_.

Declaration of the commissioners under the fifth article of the treaty of 1794 between the United States and Great Britain, respecting the true river St. Croix, by Thomas Barclay, David Howell, and Egbert Benson, commissioners appointed in pursuance of the fifth article of the treaty of amity, commerce, and navigation between His Britannic Majesty and the United States of America finally to decide the question "What river was truly intended under the name of the river St. Croix mentioned in the treaty of peace between His Majesty and the United States, and forming a part of the boundary therein described?"

DECLARATION.

We, the said commissioners, having been sworn impartially to examine and decide the said question according to such evidence as should respectively be laid before us on the part of the British Government and of the United States, respectively, appointed and authorized to manage the business on behalf of the respective Governments, have decided, and hereby do decide, the river hereinafter particularly described and mentioned to be the river truly intended under the name of the river St. Croix in the said treaty of peace, and forming a part of the boundary therein described; that is to say, the mouth of the said river is in Passamaquoddy Bay at a point of land called Joes Point, about 1 mile northward from the northern part of St. Andrews Island, and in the latitude of 45° 5' and 5" north, and in the longitude of 67° 12' and 30" west from the Royal Observatory at Greenwich, in Great Britain, and 3° 54' and 15" east from Harvard College, in the University of Cambridge, in the State of Massachusetts; and the course of the said river up from its said mouth is northerly to a point of land called the Devils Head; then, turning the said point, is westerly to where it divides into two streams, the one coming from the westward and the other from the northward, having the Indian name of Cheputnatecook, or Chebuitcook, as the same may be variously spelt; then up the said stream so coming from the northward to its source, which is at a stake near a yellow-birch tree hooped with iron and marked S.T. and J.H., 1797, by Samuel Titcomb and John Harris, the surveyors employed to survey the above-mentioned stream coming from the northward.

_Note III_.

[Article V of the treaty of Ghent, 1814.]

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 northwest angle of Nova Scotia, nor the northwesternmost head of Connecticut River has yet been ascertained; and whereas that part of the boundary line between the dominions of the two powers which extends from the source of the river St. Croix directly north to the above-mentioned northwest 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 northwesternmost 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 these several purposes two commissioners shall be appointed, sworn, and authorized to act exactly in the manner directed with respect to those mentioned in the next preceding article, unless otherwise specified in the present article. The said commissioners shall meet at St. Andrews, in the Province of New Brunswick, and shall have power to adjourn to such other place or places as they shall think fit. The said commissioners shall have power to ascertain 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 certifying it to be the true map of the said boundary, and particularizing the latitude and longitude of the northwest angle of Nova Scotia, of the northwesternmost 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. And in the event of the said two commissioners differing, or both or either of them refusing, declining, or willfully omitting to act, such reports, declarations, or statements shall be made by them or either of them, and such reference to a friendly sovereign or state shall be made in all respects as in the latter part of the fourth article is contained, and in as full a manner as if the same was herein repeated.

_Note IV_.

The point originally chosen by the commissioners in 1798 as the source of the St. Croix was to all appearance the act of an umpire who wished to reconcile two contending claims by giving to each party about half the matter in dispute. No one who compares Mitchell's map with that of Messrs. Featherstonhaugh and Mudge can fail to recognize in the St. Croix of the former the Magaguadavic of the latter. That this was the St. Croix intended by the framers of the treaty of 1783 was maintained, and, it may be safely asserted, proved on the American side. On the other hand, it was ascertained that the river called St. Croix by De Monts was the Schoodiac; and the agent of Great Britain insisted that the letter of the instrument was to be received as the only evidence, no matter what might have been the intentions of the framers. The American argument rested on the equity of the case, the British on the strict legal interpretation of the document. The commissioners were divided in opinion, each espousing the cause of his country. In this position of things the umpire provided for in the treaty of 1794 was chosen, and in the United States it has always been believed unfortunately for her pretensions. A lawyer of eminence, who had reached the seat of a judge, first of a State court and then of a tribunal of the General Government, he prided himself on his freedom from the influence of feeling in his decisions. As commissioner for the settlement of the boundary between the States of New York and Vermont, he had offended the former, of which he was a native, by admitting the claim of the latter in its full extent, and it was believed that he would rather encounter the odium of his fellow-citizens than run the risk of being charged with partiality toward them. Colonel Barclay, the British commissioner, who concurred in choosing him as umpire, had been his schoolfellow and youthful associate, and it is believed in the United States that he concurred in, if he did not prompt, the nomination from a knowledge of this feature of character. Had he, as is insinuated by Messrs. Featherstonhaugh and Mudge, been inclined to act with partiality toward his own country, he had most plausible grounds for giving a verdict in her favor, and that he did not found his decisions upon them is evidence of a determination to be impartial, which his countrymen have said was manifested in a leaning to the opposite side. Those who suspect him of being biased by improper motives must either be ignorant of the circumstances of the case or else incapable of estimating the purity of the character of Egbert Benson. His award, however, has nothing to do with the question, as it was never acted upon. Both parties were dissatisfied with the conclusions at which he arrived, and in consequence a conventional line in which both concurred was agreed upon, and the award of the commissioners was no more than a formal act to make this convention binding.

If, then, both Governments should think it expedient to unsettle the vested rights which have arisen out of the award of 1798, there is a strong and plausible ground on which the United States may claim the Magaguadavic as their boundary, and the meridian line of its source will throw the valley of the St. John from Woodstock to the Grand Falls within the limits of the State of Maine. While, therefore, it is maintained that it would violate good faith to reopen the question, there is good reason to hope that an impartial umpire would decide it so as to give the United States the boundary formerly claimed.

_Note V_.

The angle made by the southern boundary of the Province of Quebec with the due north line from the source of the St. Croix first appeared in an English dress in the commission to Governor Wilmot. This was probably intended to be identical in its meaning with the terms in the Latin grant to Sir William Alexander, although there is no evidence to that effect. If, therefore, it were a false translation, the error has been committed on the side of Great Britain, and not on that of the United States. But it is not a false translation, as may be shown to the satisfaction of the merest tyro in classical literature.

The words of the grant to Sir William Alexander, as quoted by Messrs. Featherstonhaugh and Mudge, are as follows, viz:

"Omnes et singulas terras continentis ac insulas situatas et jacentes in America intra caput seu promontorium communiter _Cap de Sable_ appellat, 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 Sanctae Mariae navium vulgo _Sanctmareis Bay_. Et deinceps, versus septentrionem per directam lineam introitum sive ostium magnae illius stationis navium trajicien, quae excurrit in terrae orientalem plagam inter regiones Suriquorum et Etcheminorum vulgo _Suriquois_ et _Etchemines_ ad fluvium vulgo nomine _Sanctae Crucis_ appellat. Et ad scaturiginem remotissimam sive fontem ex occidentali parte ejusdem qui se primum predicto fluvio immiscet. Unde per imaginariam directam lineam quae pergere per terram seu currere versus septentrionem concipietur ad proximam navium stationem, fluvium, vel scaturiginem in magno fluvio de Canada sese exonerantem. 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 Gaspee notum et appellatum."

The authentic Latin copy of the grant to Sir William Alexander, as communicated officially by the British Government, contains no commas, and would read as follows:

"Omnes et singulas terras continentis ac insulas situatas et jacentes in America intra caput seu promontorium communiter Cap de Sable appellat. 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 Sanctae Mariae navium vulgo Sanctmareis Bay. Et deinceps versus septentrionem per directam lineam introitum sive ostium magnae illius stationis navium trajicien. quae excurrit in terrae orientalem plagam inter regiones Suriquorum et Etecheminorum vulgo Suriquois et Etechemines ad fluvium vulgo nomine Sanctae Crucis appellat. Et ad scaturiginem remotissimam sive fontem ex occidentali parte ejusdem qui se primum predicto fluvio immiscet. Unde per imaginariam directam lineam quae pergere per terram seu currere versus septentrionem concipietur ad proximam navium stationem fluvium vel scaturiginem in magno fluvio de Canada sese exonerantem. 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 Gaspee notum et appellatum."

The translation of Messrs. Mudge and Featherstonhaugh is as follows:

"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 thereabout; from which promontory stretching westwardly toward the north by the seashore to the naval station of St. Mary, commonly called St. Marys Bay; from thence passing toward 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 Suriquois and Etchemins, to the river commonly 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 aforesaid river; from whence, by an imaginary straight line, which may be supposed (concipietur) to advance into the country or to run toward the north to the nearest naval station, river, or spring discharging itself into the great river of Canada and from thence advancing toward the east by the gulf shores of the said river of Canada to the river, naval station, port, or shore commonly known or called by the name of Gathepe or Gaspe."

The only American translations which have ever been presented in argument are as follows:

[Translation of Messrs. Gallatin and Preble, who were employed to prepare the statement laid before the King of the Netherlands.]

"Beginning at Cape Sable, in 43° north latitude or thereabout; extending thence westwardly along the seashore to the road commonly called St. Marys Bay; thence toward 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 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; and from thence, by an imaginary direct line, which may be conceived to stretch through the land or to run toward 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 seashores of the said river de Canada, to the river, road, port, or shore commonly known and called by the name of Gathepe or Gaspe."

[Translation of Mr. Bradley, the American agent under the fifth article of the treaty of Ghent.]

"By the tenor of this our present charter we do give, grant, and convey to the said Sir William Alexander, his heirs or assigns, all and singular the lands of the continent and islands situated and lying in America within the headland or promontory commonly called Cape Sable, lying near the latitude of 43° or thereabout, from the equinoctial line toward the north; from which promontory stretching toward the shore of the sea to the west to the road of ships commonly called St. Marys Bay, and then toward the north by a direct line, crossing 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 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 imaginary direct line, which may be conceived to go through or run toward the north, to the nearest road of ships, river, or spring emptying itself into the great river of Canada; and from thence proceeding toward 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 of Gachepe or Gaspe."

But the translations of the Americans were merely for form's sake, as the original Latin, in a copy furnished from a British public office, was laid before the King of the Netherlands; and no fear need have been felt that the umpire would not have been able to judge whether the translations were true or not. It was rather to be inferred that he, in examining a question submitted in a language foreign to him, would have found the Latin quite as intelligible as the English. This examination, however, is wholly superfluous.

From whatever source the negotiators of the treaty of 1783 derived their view of the boundary, that instrument directs that it shall be a due north line from the source of the river St. Croix. This expression is too definite to require explanation or illustration, and it is only for those purposes that any other instrument can be permitted to be quoted.

In the passages referred to the words "versus septentrionem" occur three times, and in two of the instances are qualified by the context in such manner as to leave no possible doubt as to the meaning. The first time they occur the words of the passage are, "prope latitudinem quadraginta trium graduum aut eo circa versus septentrionem." The free translation into modern idiom is beyond doubt, "near the forty-third degree of north latitude or thereabout;" and the direction toward the north must be along a meridian line on which latitude is measured, or due north. Messrs. Mudge and Featherstonhaugh, instead of connecting in their translation the words "versus septentrionem" with the words "prope latitudinem," etc., with which they stand in juxtaposition in the Latin text which they quote, connect them with the words "ad occidentem tendentem," which occur in the next clause of the sentence, even according to their own punctuation. We note this as a false translation, although it does not touch the point in dispute. They have, indeed, attempted to use it in their argument; but even if the use they make of it had been successful their inferences fall, because drawn from erroneous premises.

The second clause in which the words occur is as follows: "Ad stationem navium Sanctae Mariae vulgo St. Marys Bay, et deinceps versus septentrionem per directam lineam introitum sive ostium magnae illius stationis navium trajicientem," etc., "ad fluvium vulgo nomine Sanctae Crucis appellatum." Here the line, although directed to be drawn toward the north, is also directed to be drawn between two given points, and it is clear that under the double direction, if they should differ from each other, the position of the given points must govern, and the line be traced from one of them to the other, no matter what may be their bearings.

The last time the words occur is after the direction that the line shall pass up the St. Croix and to the most remote western spring or fountain of that stream, "unde per imaginariam lineam directam quae pergere per terram seu currere versus septentrionem concipietur." Here alone can any doubt exist as to the meaning of the terms, and that is easily solved.

The boundary pointed out in the instrument is "such as may be conceived to go or run toward the north by (per) a direct (directam) line." Now a direct line toward the north can be no other than a meridian line. Had it been merely a straight line of vague northerly direction which was meant, _rectum_, the usual expression for a mathematical straight line, would have been used instead of _directam_. It is, moreover, to be considered that the Romans had names both for the northeast and northwest points of the compass, and that the expression "versus septentrionem" in its most vague application could not possibly have admitted of a deviation of more than two points on either hand. Had the direction intended deviated more than that amount from the true north, the Latin term corresponding to northeast or northwest must have been used. Nor is this a matter of mere surmise, for in a passage immediately following that which has been quoted the direction through the Gulf of St. Lawrence toward Cape Breton is denoted by the term "versus Euronotum," leaving no possibility of doubt that had the line directed to be drawn from the source of the St. Croix been intended to have a northwestern bearing the appropriate Latin words would have been employed.

It is, besides, to be recollected that the instrument was drawn by a person using habitually and thinking in a modern idiom, and that in translating the English words due north into Latin no other possible expression could suggest itself than the one employed. Such, then, was the sense appropriately given to the Latin words, first in the commission of Governor Wilmot and his successors, governors of Nova Scotia, and subsequently in the commission of all the governors of New Brunswick from the time that it was erected into a province until the question was referred to the King of the Netherlands. In this reference, although a translation was given in the American argument, it was not as quoted by Messrs. Featherstonhaugh and Mudge, but was in the words which have already been cited.

Connected with this subject, although, like it, wholly irrelevant, is another conclusion which Messrs. Mudge and Featherstonhaugh attempt to draw from the same grant to Sir William Alexander. That charter directs the line "versus septentrionem" to be produced "ad proximam navium stationem, fluvium, vel scaturiginem in magno fluvio de Canada sese exonerantem." It can hardly be credited that, although a literal translation of this passage is given, including the whole of the three terms naval station, river, _or_ spring, that it is attempted to limit the meaning to the first expression only, and to infer that as Quebec, in their opinion, is the first naval station above Gaspe on the St. Lawrence, the line "versus septentrionem" was intended to be drawn toward that place, but that as "spring" is also mentioned the line must stop at the source of the Chaudiere. Now it has been uniformly maintained by British authorities, and most strongly in the discussion which preceded the War of 1756, that Nova Scotia extended to the St. Lawrence. The boundary of Sir William Alexander's grant was therefore to be changed from a geographical line to a water course as soon as it met with one, and the apparently useless verbiage was introduced to meet every possible contingency. Supposing, however, that it did not extend so far, the northwest angle of his Nova Scotia will be where the meridian line of the St. Croix crosses the Beaver Stream running into Lake Johnson, only a mile to the north of the point maintained by the American claim to be such.

The map of L'Escarbot, quoted by Messrs. Mudge and Featherstonhaugh, illustrates both this point and the second instance in which the term "versus septentrionem" is employed. On that map, due north of the Bay of St. Marys, a deep inlet of the Bay of Fundy is represented, and, continuing in the same direction, a deep inlet of the St. Lawrence is figured. The latter does not exist, but this map shows that it was believed to exist at the time of the grant, and must be the "statio navium" of that instrument.

This inlet of the Bay of Fundy occupies the position of the St. John, which is almost due north by the most recent determination from St. Marys Bay, and is so represented on their own map. That the St. John was by mistake arising from this cause taken for the St. Croix in the charter to Alexander is obvious from its being described as lying between the territories of the Etchemin and Souriquois. Now Etchemin, or canoe men, is the name given by the Micmac Indians to the race of the Abenakis, from their skill in the management of the canoe; and this race has always inhabited the river, whence one of their tribes is still called St. John's Indians. The language of this tribe, although they have lived apart for many years, is still perfectly intelligible by the Indians of the Penobscot, and those in the service of the commission conversed with perfect ease with the Indians of Tobique. Massachusetts, then, was right in claiming to the St. John as the eastern limit of the grant to Sir William Alexander, being the stream understood and described in it under the name of St. Croix, and wholly different from the river known to the French under that name. If, therefore, Great Britain should insist that the question in relation to the St. Croix shall be reopened, the United States would be able to maintain in the very terms of the original grant to Alexander (on which the British argument in 1797 rested) that the St. John is the St. Croix, and the boundary will be that river to its most northwestern source, the Asherbish, which flows into the upper end of Lake Temiscouata. Nova Scotia will then have recovered her lost northwest angle, which can not be found in any of the many shapes under which the British argument has been presented, although it forms the place of beginning of what is called a grant to the United States.

_Note VI_.

The fact that a line drawn from the source of the Kennebec to the mouth of the Chaudiere or thereabout must be one of the boundary lines of the grant to the Duke of York has not escaped the notice of Messrs. Featherstonhaugh and Mudge; but they have not derived the true result from this discovery. The Kennebec being the western limit of the grant, the line in question bounds the territory on the southwest, while they infer that it bounds it on the northeast. In making this inference they appear to have forgotten that the St. Croix is the eastern boundary of the grant. By their argument the grant to the Duke of York is blotted wholly from the map, or, rather, becomes a mathematical line which is absurd.

_Note VII_.

No name which has ever been applied to any part of North America is as vague as that of Acadie. The charter to De Monts in 1604 extended from the fortieth to the forty-sixth degree of north latitude; that is to say, from Sandy Hook, at the mouth of the Hudson, to the peninsula of Nova Scotia. It therefore included New York, parts of New Jersey and Pennsylvania, and all the New England States, but excluded the disputed territory. His settlement was at the mouth of the St. Croix, but was speedily removed to Port Royal. The latter place was soon after destroyed by an expedition from Virginia under Argall. Under the title derived from this conquest it would appear probable that the celebrated grant to Sir William Stirling was made; but when his agents attempted to make settlements in the country they found that the French had preoccupied it. Although the son of Alexander succeeded in conquering the country granted to his father, and even beyond it to the Penobscot, it was restored to France by the treaty of St. Germains in 1634, and the Alexanders were indemnified for the loss by the Crown of England.

In the subsequent cessions to France after its occupations by the arms of Massachusetts, and in its final cession to Great Britain by the treaty of Utrecht in 1713, the country ceded is described as Acadie or Nova Scotia, with its ancient bounds (_cum finibus antiquis_). The uncertainty arising from this vague description became in 1750 a subject of controversy between France and England, and was one of the causes which led to the war of 1756. In this discussion both parties admitted that the names Acadie and Nova Scotia were convertible terms. England maintained that the territory thus named extended to the St. Lawrence; the French, on the other hand, insisted that their Acadie had never extended more than 10 leagues from the Bay of Fundy; while by geographers, as quoted by the British commissioners, the name was limited to the peninsula which forms the present Province of Nova Scotia.[62] If Acadie had been limited to the north by the forty-sixth degree of north latitude, as expressed in the charter of De Monts, that parallel is to the south of Mars Hill. The British Government, therefore, derives no title to the disputed territory from this source, as the title of Massachusetts and of Maine as her successor is admitted to all country south of that parallel.[63]

[Footnote 62: Report of Featherstonhaugh and Mudge, p. 8.]

[Footnote 63: It can not be seriously pretended that when by the treaty of St. Germains, in 1632, Acadie was restored to France the intention was to cede to her the colonies already settled in New England. Yet the language of the British commissioners would imply that this was the case were it not that they evidently consider the forty-sixth parallel as the southern boundary of the grant to De Monts, whereas it is the northern.]

It is very easy to tell what country was actually settled by the French as Acadie. Its chief town was Port Royal, now Annapolis, at the head of the Bay of Fundy. Nearly all the settlements of the Acadians were in that vicinity, and for the most part within the peninsula.

From these seats they were removed in 1756 by Great Britain, and to them a remnant was permitted to return. The most western settlement of Acadians was on the St. John River near the present site of Fredericton, and no permanent occupation was ever made by them of country west of the St. Croix. It is even doubtful whether the settlement near Fredericton was a part of French Acadie, for it seems to have been formed by persons who escaped from the general seizure and transportation of their countrymen.

This settlement was broken up in 1783, and its inhabitants sought refuge at Madawaska; but it can not be pretended that this forced removal of Acadians subsequent to the treaty of 1783 was an extension of the name of their country. The whole argument in favor of the British claim founded on the limits of ancient Acadie therefore fails:

First. Because of the inherent vagueness of the term, on which no settled understanding was ever had, although England held it to be synonymous with Nova Scotia and France denied that it extended more than 10 leagues from the Bay of Fundy.

Second. Because by its original definition in the grant to De Monts it excludes the whole disputed territory on the one side; and

Third. Because in its practical sense, as a real settlement, it is wholly to the east of the meridian of the St. Croix, and this excludes the whole of the disputed territory on the other.

The portion of the territory granted to the Duke of York, and which is now the subject of dispute, therefore can not be claimed as a part of Acadie, as it never fell within its limits either by charter or by occupation.

_Note VIII_.

[Extract from the award of the King of the Netherlands.]

Considering that in 1763, 1765, 1773, and 1782 it was established that Nova Scotia should be bounded at the north as far as the western extremity of the Bay des Chaleurs by the southern boundary of the Province of Quebec; that this delimitation is again found with respect to the Province of Quebec in the commission of the Governor-General of Quebec of 1786, wherein the language of the proclamation of 1763 and of the Quebec act of 1774 has been used, as also in the commissions of 1786 and others of subsequent dates of the governors of New Brunswick, with respect to the last-mentioned Province, as well as in a great number of maps anterior and posterior to the treaty of 1783; and that the first article of the said treaty specifies by name the States whose independence is acknowledged; but that this mention does not imply (_implique_) the entire coincidence of the boundaries between the two powers, as settled by the following article, with the ancient delimitation of the British Provinces, whose preservation is not mentioned in the treaty of 1783, and which, owing to its continual changes and the uncertainty which continued to exist respecting it, created from time to time differences between the provincial authorities.

_Note IX_.

[Article IV of the convention of 1827.]

The map called Mitchell's map, by which the framers of the treaty of 1783 are acknowledged to have regulated their joint and official proceedings, 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, respectively, and which has accordingly been signed by the above-named plenipotentiaries at the same time with this convention, shall be annexed to the statements of the contracting parties and be the only maps that shall be considered as evidence mutually acknowledged by the contracting parties of the topography of the country.

It shall, however, be lawful for either party to annex to its respective first statement, for the purposes of general illustration, any of the maps, surveys, or topographical delineations which were filed with the commissioners 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 topographical delineations, other than the Map A and Mitchell's map, intended to be thus annexed by either party to the respective statements, shall be communicated to the other party, in the same manner as aforesaid, 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.

_Note X_.

[Extract from the award of the King of the Netherlands.]

Considering 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 directions, and that thus the character, more or less hilly and elevated, of the country through which are drawn the two lines respectively claimed at the north and at the south of the river St. John can not form the basis of a choice between them.

_Note XI_.