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ufufe ste law- to point oat, how unjust it would be, to apply, on this, a different rule from that which
was adopted on a former occasion; and, after having decided, at one time, in conformity with what was deemed the true meaning of the terms of the treaty, and in direct opposition to Mitchell's Map, and to the clear and acknowledged intentions of the negotiators, to substitute, in this case, to express terms of the treaty, which admit of no doubt, a construction founded on a more than doubtful intention, inferred only from an error in that Map.
The question would have been different, had the error induced the negotiators to define the boundary in such terms as would have rendered it impossible to execute the treaty according to its tenor.
This is not a hypothetical case. The framers of the treaty, misled by another and more fatal error in Mitchell's Map, defined the boundary from the most North-western point of the Lake of the Woods, as being “ on a due West course to the River Mississippi.” It was afterwards ascertained, that such line would pass North of the most Northern sources of that River, and that its length, as designated by the treaty, was therefore indefinite.
In that case, as the treaty could not be executed, it became necessary to provide by a new negotiation for an amicable settlement of the question. No such difficulty occurs in the case now under consideration, because, notwithstanding the error in Mitchell's Map, and whatever may have been the belief of the negotiators, the terms of the 'Treaty cover the contingency which has taken place, and can be executed according to their tenor.
Objections derived from the signification of the term “ Highlands."
It is contended, on the part of the United States, that the word “Highlands” is, in its general sense, an indeterminate and relative term; that the property of dividing the rivers designated by the Treaty, is that which affixes to that expression a definite and precise meaning; and that, independent of any other consideration, it was for that reason judiciously selected, in reference to an unexplored country, as applicable to any ground along which the line dividing those rivers should be found to pass. sition of the highlands being clearly ascertained by the indispensable condition, that they must divide certain specified rivers, any objection derived from a presumed mcaning of the word “ Highlands” refutes itself, if its object be to divest them of that essential character.
The most common error in relation to that subject is that of supposing, that “highlands which divide rivers" must necessarily be mountains.
Because the Alps divide the rivers of Italy from those of Germany and France; be. cause these are divided from those of Spain by the Pyrennees; because, in America, the Allegheny Mountains, for an extent of several hundred miles, divide the sources of the rivers which fall into the Gulf of Mexico, from those of the rivers which empty themselves into the main Atlantic Ocean; it seems to have been concluded by many, (m) whose opinion was founded only on an erroneous analogy, that the highlands
(m) Amongst others, the Agent of the United States under the 5th article of the treaty of 1794, (Mr. Sullivan,) as quoted by the British Agent in the course of the proceedings under the late commission. Mr. S., though a man of extensive learning, was not probably acquainted with the technical mean. ing of the terms "highlands” and “ height of land;" and he does not appear to have investigated any other branch of the subject than that on which he was appointed to argue, namely: which was the true St. Croix? Yet, although he seems to have confounded “bighlancis” with "mountains,” and to have
which divide the rivers, that, in the territory in question, flow in opposite directions, Higalands. must also be a continuous chain of conspicuous mountains, soaring above all the adjacent country. But nature is not so uniform in her works, as the tendency of the human mind to generalize would make her; facts will overset systems formed before they had been ascertained: and the ridges which divide the sources of the River St. John, from the tributary streams of either the River St. Lawrence or the Penobscot, as those which separate the Borysthenes and the Volga from the Dwina and the Neva, though they may not have the character of conspicuous mountains, are not the less embraced by the general expression of " highlands” which divide those rivers respectively.
It appears to have been now ascertained, that there is not, East of the sources of the Chaudiere, any continuous and conspicuous chain of mountains. The ridges run in various directions; their course being generally parallel to that of the rivers, instead of dividing thein from each other at their sources. And a new definition of the term “ Highlands” is now suggested, as being apparently better adapted to the ground over which the British line must pass.
It is asserted, on the part of Great Britain, that that term implies high, i. e. elevated, lands; or, in other words, a generally elevated and mountainous tract of country; it not being necessary, however, that those highlands should present an absolutely unbroken and continuous ridge, without the intervention of valley or swamp.
This definition is so vague, that if adopted it would only open a new field for dis. cussion, there being no precise criterion by which to judge whether the line claimed by either party has the general elevation required, and passes along, or near, a sufficient number of mountains, and through no more than its due proportion of valleys and swamps.
It will accordingly be found, that, whilst the notion of a continuous and conspicuous chain is abandoned, so far as relates to the line claimed on the part of Great Britain, she continues to require, that there should not be found in the dividing highlands claimed by the United States, any of those depressions, valleys and swamps, which are admitted by the meaning she attaches to the term “ Highlands."
If it is intended to divest this presumed mountainous country of the character of dividing the rivers prescribed by the treaty, the pretended definition is not merely an explanation of the term, but a substitution of the words, "a generally mountainous country," to the express terms of the treaty, “the Highlands which divide the rivers," &c.
If it is intended to preserve the conditions prescribed by the treaty, the supposition that the boundary line must be along the mountainous country which divides the rivers, &c. would be of no avail to Great Britain, since her line does not divide the rivers designated by the treaty. And this double condition implies contradiction, since, in their total ignorance of the nature of the intervening country, it was impossible for the negotiators to divine, whether a line, dividing the rivers specified by the treaty, would also be found to extend along a generally mountainous country.
Although the British definition is totally inapplicable to a boundary line, an extensive district of country generally mountainous may, not in reference to such a line, but as contradistinguished from another tract of country, be designated with propriety
been embarrassed by the information, (correct or erroneous,) that the highlands designated by the treaty were not a chain of conspicuous mountains, that circumstance did not prevent his forming a correct opinion on the main question, and clearly seeing that the boundary line must, according to the express terms of the treaty, ise along the ground which divides the rivers therein specified, without regard to its nature or character. And the boundary is laid down accordingly, in the map annexed to his History of the District of Maine. (Topogr. Evidence, No. 36.)
Mighlands. by the name of highlands. Thus the Northern part of Scotland has received that ap
pellation, in order to distinguish it from the Southern part, known by the name of Lowlands. (n) Those Highlands comprehend an extensive country, rugged and mountainous, intersected by rivers and valleys, and without any conspicuous ridge dividing the rivers that flow in opposite directions.
If Great Britain, for any purpose whatever, thought it proper to divide that Northern part of Scotland into two districts; and the line, intended to divide those districts, was described only as running generally along the Highlands, it would be altogether indefinite and unintelligible. But if the line was defined as being, from the Northern sources of Loch Fine, along the Highlands which divide the rivers that empty themselves into the German Sea, from those which fall into the main Atlantic Ocean, to Duncansby Head; there is no Engineer, or Surveyor, appointed to survey the same, who would hesitate, without regard to the position of the most conspicuous and elevated mountains, to leave, through the whole extent of the line, from Loch Fine to Duncansby Head, the sources of all the rivers that fall into the German Sea, on his right hand, and, on his left, the sources of all those that fall into the main Atlantic Ocean. And in that course he would necessarily cross the summit level, which separates Loch Dich from Loch Eil, the elevation of which is only 94 feet above the level of the Sea; (0) since, by pursuing any other course, he must, contrary to the definition of the line, cross one of the waters to be divided; and without gaining any thing in point of elevation, since whichever of the Lochs or waters he would thus cross, must necessarily be lower than the summit level, which divides one from the other.
In the same manner, the boundary line between the United States and Great Britain would have been altogether indefinite and unintelligible, if described only as running generally along the highlands, or across a mountainous country. And since it is defined, as extending along the highlands which divide the rivers designated in the treaty, it must necessarily, through its whole extent, leave on each hand respectively the sources of the rivers thus directed to be divided: since it could not pursue any other course, otherwise than by crossing one of those rivers, and be there at a place less elevated than the dividing ridge; which for that very reason, and without regard to its absolute elevation, is justly entitled to the relative appellation of “Highlands.”
Besides Seotland, there is another instance of the word “Highlands” being used, not as a generic term, but as the special appellation of a particular country or spot.
The chain, known in Virginia by the name of Blue Ridge, extends from the borders of North Carolina to those of the State of Connecticut. It assumes the various names of South Mountain, Flying and Oley Hills in Pennsylvania. “In New Jersey, it is called Miscapetcung, and in New York the Highlands." (p) The river Hudson breaks through the mountains at that place: the tide flows through and far above “that extraordinary and very singular passage:" and it is in reference to the much lower banks of the river above and below, that the portion of the chain which borders
it has received that name. It is here, as in every other instance, used as a relative term, since it is not applied to any other portion of the chain.
But the supposition, in the British Statement, that the name of " height of land," given to that portion of the highlands which divides the waters of the Connecticut and of the Kennebec from those of the St. Lawrence, instead of being a generic term, was a distinctive and special appellation particularly applicable to that portion, is altogether
(n) Written Evidence, No. 39.
(P) Pownall, pages 27 and 11-Written Evidence, No. 40.
It is asserted that this height of land had been described in many public documents, lifghlande as dividing the rivers aforesaid, to the West of the sources of the River St. John and of the Western head of the Penobscot. (9)
The only public documents prior to the year 1783, in which that height of land” had been described, are the Proclamation of 1763, the Quebec Act of 1774, and the Commissions of the Governors of the Province of Quebec. It was there described, not by that name, but by that of “ Highlands:” and this term, which is used in reference to the Southern boundary of Canada, is not applied exclusively, in those public documents, to the small portion alluded to in the British Statement, but to the whole of the Highlands which extend from the Connecticut River to the Bay des Chaleurs.
The only colorable authority for the allegation is that of Governor Pownall. He says that the Connecticut River and the River Kennebec rise on the “Height of Land,” in North Latitude 45° 10' and 45° 20' respectively; that "a range
crosses the East boundary line in New Hampshire, in latitude 421°, and trending North-east forms the Height of Land between Kennebec and Chaudiere Rivers;” to which he adds, “of the nature and course of this highland I am totally uninformed;” and that all the heads of Kennebeo, Penobscot and Passan aquada Rivers are in the Height of Land, running East-north-east.”
Whence it seems to be inferred, not only that the portion of the dividing highlands in which the rivers Kennebec and Connecticut have their sources, was, prior to the treaty of 1783, emphatically called “the Height of Land ;" but that an Eastern continuation of those Highlands, in which continuation, tributary streams of the Kennebec, and the rivers Penobscot and Passamaquoddy (the Schoodic) had their sources, was also known to Governor Pownall, and considered by him as the same height of land.
Governor Pownall had collected many facts, and relates them faithfully : and he carefully distinguishes his knowledge, when derived from surveys or actual explorations communicated to him, or made under his own direction, from the vague and often incorrect information he might have received in relation to other parts of the country, respecting which he previously declares himself to be uninformed.
It will be found by his own account, (n) that his knowledge extended, on the Kennebec, no higher up than the branch now called Dead River, and on the Penobscot than the River Matawamkeg, and that he was also well acquainted with the Passamaquada, or Schoodiac River, which he describes with considerable correctness, from the Schoodiac Lakes, to its mouth in the Bay of Passamaquoddy.
A nearly straight line drawn, on Map A, from the Schoodic lakes to the source of the Dead River, will shew the northern limit of his actual knowledge in that quarter. That line, through its whole extent, is from 50 to 60 miles south of the British line, and of “the height of the land running east-north-east," in which are to be found all the heads of Penobscot and Kennebec rivers.
Respecting the nature and course of the highland, beyond the source of the Dead River, whether extending North-eastwardly to the Bay des Chaleurs and the Gulf of St Lawrence, or branching off East-north-east to the source of the Passamaquoddy River, he was, as he says, totally uninformed.
But he knew from all the maps then published, including that of Mitchell, that the River St. John penetrated in the country Westwardly, so as to have some of its sources opposite those of the Chaudiere and within less than 40 miles of the River St. Lawrence. And, although without any correct information respecting the nature of either of the dividing grounds, and with very little concerning their course, he was clearly assured; that two dividing ridges must be found ; one extending to the Bay
(9) British Statement, page 31.
Highlands. des Chaleurs, which divided the Northern tributary streams of the River St. John
from the rivers that fall into the River St. Lawrence; and another extending to the sources of the Passamaquada River, which divided the Southern tributary streams of the St. John from the sources of the various branches of the Penobscot, and perhaps of the Kennebec.
He describes the first dividing ridge (page 9,) as mountains, which, in the latitude 45 or thereabouts, (that is to say about the source of the Dead River,) “turning Eastwards run away to the Gulf of St. Lawrence :” and again (page 14) in the following words, viz: “Going from the same line, in latitude 45, of the greatest height of this range of mountains, and following them to the East northerly: They all seem to range as united until again divided by the Bay of Chaleurs, an arm of the Gulf of St. Lawrence. All the rivers which have their sources amidst the Northern ridges of this great range, fall into Canada or St. Lawrence River, as the St. Francis, Chaudiere, and many others.”
And he describes the other ridge (page 14,) as the “Southern ridges," amidst which those rivers have their sources exclusively, which fall into the Bay of Fundy or into the main ocean; and, (page 24,) as the height of the land, running East-northeast, in which are to be found all the heads of Kennebec, Passamaquoddy and Penobscot rivers.
But Gov. Pownall, though having a general knowledge of the position, of both the above mentioned dividing ridges had none (North-east and East-north-east of the sources of Dead River,) of their nature and character, with the exception only of that place, where the river Passamaquady has its source, which he says (page 20) “is formed by a succession of lakes and swamps."
It is therfore impossible that he should have intended, by the term “ height of land” or “ highland" to define the nature of the ground; or that he should have used it, as the special or local name of any particular highland or mountain. The term is clearly used by him, as a generic expression, and in reference only to the sources of rivers. It means with him nothing else than the ground which divides rivers flowing in different directions, whatever may be the absolute elevation, or in other respects, the character of such ground. And we will now give abundant proof that such is, in Canadian and New England geography, not only one of the significations, but the sole and exclusive meaning of the term “ height of land ;” and that the other expression, “highlands," though in its general sense applied also in cases where there is no division of rivers, is, whenever detined by the adjunct dividing, always used as synonymous with “height of land.”
That the terms “height of land” and “highland" are used as synonymous, is proved beyond doubt, in relation to that very part of the dividing highlands described by the treaty, which is acknowledged by both Powers to be part of their boundary.
Thus Pownall (page 17) says, “a range running hence crosses the East boundary line of New Hampshire in lat. 44), and trending North-east forms the height of the land between Kenebaeg and Chaudiere rivers: of the nature and course of this high land in these parts I am totally uninformed.”
Mr. Bouchette, Surveyor Gen. of Lower Canada, in his Topographical Description of that Province, in reference to the same highlands, which he expressly states to be a chain that “commences upon the Eastern branch of the Connecticut River, takes a North-eusterly course, &•c. and terminates near Cape Rosier,” calls them “the ridge generally denominated the land's-height, dividing the waters that fall into the St. Lawrence from those taking a direction towards the Atlantic Ocean." (8) In his
(8) Bouchette, page 25--He designates again that chain by the name of " height of land,” page 281-Written Evidence, No. 43, pages 203, 304.