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14, 9-For “ nor" read “or."
“ 41-Strike out “ of Great Britain."
6-For “possssion” read “possession."
7-For “ East” read “West."
NORTH-WEST ANGLE OF NOVA SCOTIA, &c.
Some of the Preliminary Observations of the First Statement, on the part of Great Preliminary Ob Britain, appear to have been intended for the purpose of suggesting, that the treaty of 1783 ought to be interpreted by rules different from those universally recognised for. the construction of treaties in general.
It is difficult to understand, for what other purpose it is asserted, that a Boundary established between the United States and the remaining British Provinces, and therefore common to both, " was made in reference to the boundaries of the Provinces relinquished, and not in reference to those which remained under the sovereignty of the King:" an assertion which appears still more extraordinary, when it is recollected, that the description in the treaty of the Boundary in question, is almost literally borrowed from that of the boundaries theretofore assigned by Great Britain to the Provinces of Nova Scotia and Quebec.
Another assertion equally uncalled for, is, that the relative position of Great Britain to the United States, at the time of negotiating the Treaty of 1783, (or the Provisional Articles of Nov. 1782,) was that of " a Mother Country treating with Colonies not yet recognised as independent;" and that “from the period of the cession by France of the Province of Canada in 1763, to that of the peace of 1783, the whole of that portion of N. America belonged to Great Britain."
It might with equal propriety be asserted, that all the United Provinces of the Netherlands had belonged to Spain till the treaty of Westphalia. It is notorious and in proof, that the United States refused to open a negotiation with Great Britain, until their independence had been previously actually recognised; and that Richard Oswald, the Commissioner appointed on the part of Great Britain, was accordingly, by his Commission dated 21st September, 1782, authorized to treat with any Commissioners or persons vested with equal powers by and on the part of the thirteen United States of America; his former commission of the 7th of August preceding, appointing him to treat with any Commissioners, named or to be named by certain Colonies or Plantations therein specified, being at the same time expressly revoked by his said second commission. (a)
The acknowledgment of the independence of America was only the recognition of an existing fact : an acknowledgment not wanted by the United States, in order to establish the fact, but which, by putting an end to the war, was highly important to. them; and, it may be presumed, not undesirable to Great Britain.
(a) Written Evidence, No. 9 (a)
Preliminary Ob All claims to the territorial rights of the United States are relinquished, on the servations.
part of Great Britain, by the same article which acknowledges them to be independent States.
This relinquishment, which was a necessary consequence of their independence, is entire, complete, and without any restriction or exception. The Contracting Powers proceed then, in the Second Article, and in order to prevent disputes, which might arise from their uncertainty if not expressly described, to declare and define the actual boundaries, as resulting from that relinquishment. It follows, therefore, that this Second Article is subject to no other rule of construction, but such as are admitted to apply to any Treaty concluded between equal and independent nations.
The principal object, however, of the Preliminary Observations of the British Statement is to suggest, that, the whole subject of boundaries being involved in obscurity, and the Negotiators having been unable to define them with sufficient accuracy, the very terms of the treaty manifest the uncertainty of the Negotiators, and it is necessary to appeal from its letter to what is called its spirit and their intentions.
Whatever uncertainty may, from the first instructions of Congress, be presumed to have existed in that body, respecting the true boundaries of Massachusetts’ Bay, is evidently to be ascribed to the want of a sufficient investigation of the Charter of that Province, and of the other Public Acts of Great Britain, affecting the subject, which have been stated at large in the first American Statement. And it is equally evident, that, whatever may have been the cause of that uncertainty, there was none in that respect on the part of the framers of the Treaty.
In obedience to those instructions, the alternative was in the first instance offered, either to declare the River St. John to be the Boundary, or that the true line between Nova Scotia and the United States should be settled by Commissioners, as soon as conveniently might be after the war. The last alternative would undoubtedly have been adopted, had there been any uncertainty on the part of the Negotiators, and had they thought it absolutely impossible to lay down with sufficient accuracy the several points and lines of the Boundary in question. Instead of which, after a due investigation of the Charter and other Public Acts of Great Britain, they ultimately agreed, not to leave the subject in that state of uncertainty in which the proposed reference to Commissioners would have placed it, but actually to define the boundary in conformity with the provisions of that Charter, as modified or explained by those other several Public Acts.
A doubt indeed afterwards arose, which it became necessary to settle by a special commission, with respect to the true River St. Croix. Relying on the use of Mitchell's Map, the American Negotiators had expected that no question could arise even as to that point. But, in reference to that portion of the boundary which is now alone the subject of discussion, the terms of the Treaty are neither uncertain nor obscure, but on the contrary equally clear, precise, and appropriate.
The North-west Angle of Nova Scotia, as claimed by the United States, is, in strict conformity with those terms, on highlands which actually divide the rivers that empty themselves into the River St. Lawrence from the waters of the Ristigouche. And the boundary line, as claimed by them, extends thence, through its whole extent, to a certain source of the Connecticut River, along highlands which actually divide rivers that empty themselves into the River St. Lawrence from the waters of the Ristigouche, the St. John, the Penobscot, the Kennebec, the Androscoggin, and the Connecticut; all which rivers, as the United States contend, fall into the Atlantic Ocean.
Mars' Hill, which Great Britain pretends to be the North-west Angle of Nova Scotia, is acknowledged by her to be a highland which neither divides, nor is within one hundred miles of any highland that does actually divide, rivers that empty them
selves into the River St. Lawrence, from any other river or rivers whatever. And Preliminary Ob. it is likewise acknowledged, on her part, that the boundary line, claimed by her, is, from that point, and through three-fifths of its extent, along highlands which do not actually divide rivers that empty themselves into the River St. Lawrence, from any other river or rivers whatever.
The question at issue between the two Governments therefore is, whether the terms of the Treaty, which describe the North-west Angle of Nova Scotia and the boundary line from that point to a source of the Connecticut River, as being respectively on and along the highlands, which divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, are susceptible of the following interpretation, viz: that the North-west Angle of Nova Scotia and the said boundary line, for three-fifths of its extent, may be respectively on. and along highlands, which do not actually divide the rivers as above specified.
In order to sustain her extraordinary pretension, it was ineumbent on Great Britain, before she proceeded to search for the intentions of the Negotiators, to prove, in the first place, that the terms of the treaty were susceptible of the interpretation which she ascribes to them.
Instead of pursuing this course, not a single argument is adduced, in the British Statement, to sustain the main position on which the pretension of Great Britain is founded. No attempt is made to prove, that the terms of the treaty can be so interpreted, as to mean the reverse of what they express. And it is because those explicit terms are wholly irreconcilable with her pretensions, that Great Britain is compelled to suggest, as has been done in the Statement on her part, an appeal from the letter of the treaty to what is very improperly called its spirit, and to certain intentions which, it will be found, have been most gratuitously ascribed to the framers of the treaty..
Admitting that there was some foundation for the several objections contained in the British Statement: admitting, which is altogether denied, that the term “Rivers which fall into the Atlantic Ocean,” is, in that sentence, of doubtful import, and, what is equally unfounded, that the term “Highlands” implies a character which does not attach to the ground over which the American line extends : yet, the place claimed by Great Britain, as the North-west Angle of Nova Scotia, and three-fifths of what she asserts to be from that point the boundary line, would still be on grounds, or Highlands, other than those prescribed by the express terms of the treaty.
This observation would of itself be a satisfactory answer to all those objections. It is a matter of regret that they cannot be fully examined and refuted, without entering into details, which will extend this Reply much beyond what was desirable or had been anticipated. But although the course, thus forced upon us, may be attended with the inconvenience of giving an appearance of complexness to a question most simple and clear in itself; the investigation will at least have the advantage of exposing, in a striking manner, the arguments which must be resorted to, in the attempt to sustain the pretensions of Great Britain, and of placing in a still stronger light the solidity of the right of the United States to the contested territory.
The observations in the British Statement embrace the following points, viz:
A general assertion, that the framers of the treaty of 1783, intended to give to each Power the entire possession of the rivers which have their mouths within their Dominions, respectively.
The geographical signification of the term “ Atlantic Ocean.”
The effect which the designation of the Bay of Fundy and of the Gulf of St. Lawrence, by their specific names, in one sentence, may have on the term “Rivers which fall into the Atlantic Ocean," in another sentence of the treaty.
The inductions which may be drawn, in reference to the same term, from the negotiations of 1782, and from the Canadian origin of a certain grant of land known by the name of “ Fief of Madawaska.”