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Prelimmary Ob The signification of the term “ Highlands,” and the character of those claimed by servations.
both Powers respectively.
The Acts of both parties, and the opinions expressed by some of their officers, in relation to the contested territory, subsequent to the treaty of 1783.
Those several points will be successively investigated ; always recollecting, however, that they do not affect the main question at issue, to which we will afterwards. revert.
OBJECTIONS TO THE AMERICAN LINE EXAMINED.
GENERAL ARGUMENTS APPLICABLE TO BOTH THE BAY OF FUNDY AND THE
GULF OF ST. LAWRENCE.
The first effort in the British Statement, to prove that the rivers described, in the cd.
Treaty, as falling into the Atlantic Ocean, do not include those that empty themselves into the Bay of Fundy and the Gulf of St. Lawrence, consists in an appeal to certain pretended intentions of the framers of the treaty, in the following words:
“There being between them, (Canada and Nova Scotia,) at the period of the treaty of 1782–3, no certain and acknowledged Boundary, no man knew where the northwest angle of Nova Scotia really was; and the negotiators of the treaty proceeded by other modes to describe the intentions of their respective Governments, which were, to give to each Power the entire possession of the great rivers which have their mouths within their dominions respectively."
That there were certain and acknowledged boundaries between Canada and Nova Scotia, at the period of the treaty, and that the reference in it, to the north-west angle of Nova Scotia, could not have been made, had not this been a point previously determined, has been conclusively established in the First American Statement. No man, indeed, knew the spot of ground where that angle would be found; but, in order to ascertain this, nothing more was believed, at the date of the treaty, to be required, than the operation of surveying the line, to be drawn due North from the source of the River St. Croix, till it met the dividing highlands. And admitting the unfounded supposition, that there was at that time any uncertainty with respect to those highlands, it is most certain, that the negotiators of the Treaty resorted to no other modes to describe the intentions of their respective Governments, than that of defining the boundary in the Treaty itself.
The assertion is inferred, from what is called the rationale of the case, and from the preamble of the preliminary articles of 1782.
The rationale of the case consists in saying, that, “ by the treaty, the River St. Croix, which is described as having its mouth in the Bay of Fundy, is expressly assigned as the extreme eastern limit of the United States;” and that, “in the meridian of the source of this River, is placed the point of departure for the whole line of boundary, which is to be thence traced westward.” Whence it is inferred:
1st. That “It was evidently determined, in this very important part of the boundary, to divide from each other, at their sources, the several great rivers assigned to each power. Such intent, the expression highlands which divide,' plainly denotes; for what could be the object of selecting highlands at all in reference to rivers, if those
rivers were to be divided by the Line of Boundary indiscriminately, either at their Rivers intersectsources, or in any part of their course?”
2dly. That “the St. Croix being the extreme eastern limit of the United States, the only rivers which could have been intended to have been thus divided, were surely those which empty themselves between the meridians of St. Croix, eastward, and of the head of the Connecticut River, westward; thus securing to the United States the whole of each river emptying within their own territory, and to Great Britain the whole of each river emptying within her territory.”
In the first of those inferences, the term “ to divide” is used in two different senses. Where it first occurs, and as applied to the highlands, it means, to separate the sources of one class from the sources of another class of rivers. In the next sentence, and as applied to the due North line, it means, to cross or intersect one and the same river.
And thus, because the Boundary, extending westwardly from the north-west angle of Nova Scotia to the source of Connecticut River, was to separate from each other, at their sources, the several rivers falling respectively into the River St. Lawrence, and into the Atlantic Ocean; it is inferred, that it was intended that none of those rivers should be intersected in any part of their course, by another and distinct portion of the boundary.
The second pretended inference is only a repetition of the assertion intended to be proved. There is no connection between the fact, that the sources of the rivers to be divided, lie westward of the meridian of the source of the St. Croix, east of which the United States can claim no territory, and the assumed conclusion, that the United States cannot claim that portion of the country watered by those rivers, which is situated west of that meridian.
The United States contend, that the intention of that clause of the treaty is precisely what it purports to be, viz. that the boundary line should, through its whole extent from the north-west angle of Nova Scotia to the head of Connecticut River, divide from each other the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean; that this imperative clause, thus to divide the said rivers, applies exclusively to that particular part of the Bouudary thus precisely defined; that it does not prescribe, either to divide or not to divide rivers, nor contains any injunction whatever, with respect to any other portion of the Boundary between the two Powers; and that every other portion of the said Boundary is defined distinctly, and must be understood as thus defined, according to the terms in which each such portion is respectively described.
It is hardly necessary to advert to the pretended “anomaly which attends the line destined to divide the St. John, if an Atlantic River, from the St. Lawrence Rivers, namely, that that line would be absolutely obliged to cross the St. John in the middle of its course, in order to arrive at its source, for the purpose of dividing it from the rivers flowing into the St. Lawrence."
The line, which by the treaty is not only destined, but expressly directed, to divide the St. John from the St. Lawrence rivers, is that alone which extends from the northwest angle of Nova Scotia, to the head of Connecticut River; and the due North line from the source of the St. Croix, which does actually cross the St. John, is, in no manner whatever, directed, destined, or intended, to divide the tributary streams of that River from those that fall into the St. Lawrence.
But when it is added, that, if it had been intended, that the due North line should cross the River St. John, there can be no doubt that such a peculiarity would have been specifically adverted to; it must have been forgotten, that both the direction and length of a straight line are determined by the two points at its two extremities, so as to render any further description superfluous; and that, accordingly, although it was equally well known, that the Boundary along the parallel of the 45th degree of North
Rivers intersect- latitude would cross Lake Champlain, and that the southern Boundary would also ed.
cross the Mobile, those peculiarities were neither in the treaty, nor the negotiations, specifically adverted to. (6)
Some general expressions, in the preamble of the provisional articles, considerably modified in that of the definitive treaty, have been resorted to, as referring to the boundaries, and as proving that the negotiators had other boundaries in view than those which are expressly defined in the treaty.
That preamble was originally prefixed, in the same words, to the four articles agreed upon, on the 8th October, 1782, between Richard Oswald, Benjamin Franklin, and John Jay, and which are contained in the paper No. 1, enclosed in B. Franklin's letter, of 5th December, 1782. (c)
The 4th Article is in the following words:
“ That the navigation of the River Mississippi, from its source to the Ocean, shall for ever remain free and open, and that both there, and in all rivers, harbors, lakes, ports, and places, belonging to his Britannic Majesty, or to the United States, or in any part of the world, the merchants and merchant ships of the one and the other, shall be received, treated, and protected, like the merchants and merchant ships of the sovereign of the country: that is to say, the British merchants, and merchant ships, on the one hand, shall enjoy in the United States, and in all places belonging to them, the said protection and commercial privileges, and be liable only to the same charges and duties as their own merchants and merchant ships; and on the other hand, the merchants and merchant ships of the United States, shall enjoy in all places belonging to his Britannic Majesty, the same protection and commercial privileges, and be liable only to the same charges and duties of British merchants and merchant ships, saving always to the chartered trading companies of Great Britain, such exclusive use and trade, and their respective posts and establishments, as neither the subjects of Great Britain, nor any of the more favoured nations participate in."
It is impossible not at once to perceive that the expressions used in the preamble, “ principles of liberal equity and reciprocity,” and, “partial advantages being excluded,” so that “a beneficial and satisfactory intercourse between the two countries may be established," applied in the most direct, if not exclusive manner, to the clauses of the aforesaid 4th Article, which provide for a reciprocal, liberal, and beneficial intercourse between the two countries.
No such provision was inserted in the Preliminary Articles of November, 1782. Dr. Franklin, in his letter of 5th November, 1782, alluding to that omission, says, " The reason given for dropping the article relating to commerce, was, that some statutes were in the way, which must be repealed before a treaty of that kind could be well formed, and that this was a matter to be considered in Parliament.” (d)
There being still an expectation, that an agreement might be made on that subject, the Preamble was suffered to remain in the Preliminary Articles. But when, after a long negotiation, which took place during the course of the year 1783, and the details of which may be seen in Dr. Franklin's Correspondence, (e) it was found that there was no longer any hope of establishing, as had been at first intended, a beneficial commercial intercourse between the two countries, and that, accordingly, no provision could be inserted in the treaty to that effect, the Preamble, which was applicable to that object, was considerably modified, omitting in the Definitive Treaty the most pointed, and preserving only the most general expressions.
(6) It cannot even be asserted, that the fact of the due North line crossing the River St. John, was not adverted to in the negotiations, since there is no account extant of the discussions which took place i that respect, subsequent to the rejection of the first project.
(c) Written Evidence, No. 9. (a) (d) Dr. Franklin's 3d vol, page 285.
(e) Ibid. pages 321-371.
An allusion has also been made to the first sentence of the Second Article of Rivers intersectthe Definitive Treaty.
All claims to the territorial rights of the United States, and of every part thereof, having been relinquished by his Britannic Majesty, in the first Article; the second, in continuation, is thus expressed, viz: “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."
It is obvious from the tenor of the Article, that the disputes on the subject of boundaries, intended to be prevented, were those which might have arisen, not from their not being every where equally convenient to both parties, but from their uncertainty, had they been left subject to the doubtful interpretation of the indefinite term “territorial rights," instead of being specially and precisely described.
The proper answer, however, to every inference attempted to be drawn from such general expressions, used in a Preamble, or as introductory, is, that their true intent can only be found in the actual conditions of the treaty, instead of deducing the meaning of those conditions from conciliatory expressions of vague import, which are usual and proper in most treaties of peace.
The general assertion, respecting the intentions of the framers of the Treaty, is not only unsupported by proofs, but it is disproved both by the avowed intentions of the negotiators, and by the various provisions of the treaty.
It has been conclusively shewn, in the First American Statement, that wherever it was practicable, and clearly with respect to the portion of the boundary under discussion, the boundaries were declared and designated by the treaty, not on any abstract principle, or arbitrary grounds, nor with a view to presumed convenience, but in exact conformity with the boundaries previously established by the public acts of Great Britain. (f) This having been the undeniable intention of the negotiators, and being incontestably proved by the coincidence of the expressions used in the treaty and in those acts, is alone a conclusive proof, that their object was not to assign to each Power the entire possession of those rivers, which had their mouths within their territories respectively.
This presumed intention is equally disproved by the decisive fact, that it was not adhered to, with respect to any other part of the Boundary.
From the Connecticut River to St. Regis, on the River St. Lawrence, the Boundary is a due west line, along the 45th parallel of North latitude, which crosses Lake Champlain, and several other tributary streams of the River St. Lawrence, leav ing within the United States, the upper branches and the sources, and within the dominions of Great Britain, the mouths and lower portion of those streams.
From St. Regis to the western extremity of Lake Superior, all the rivers from the South, which fall either into the River St. Lawrence, or into the great lakes with which it communicates, are within the boundaries of the United States: Whilst all the rivers which, flowing from the South, fall into the River St. Lawrence below St. Regis, and all the rivers without exception, which flow from the North, either into the great lakes, or into that river, are, together with the mouth and sole outlet into the Sea of that immense body of waters, assigned to Great Britain.
All the inconveniences, with respect to navigation, or to a division, between the two Powers, of a country lying on the banks and waters of the same River, which are ascribed, by Great Britain, to the treaty boundary line, so far as it affects the River St. John, apply, with equal and greater force, to the River St. Lawrence, and to the extensive countries situated on its waters. And, on the principle she assumes,
(5) Viz: The Charter of Massachusetts' Bay, the Royal Proclamation of 1763, the Act of Parliament (Quebec Act) of 1774, and the Commissions of the Governors of Nova Scotia, to the year 1782.
Rivers intersect- she might, with equal consistency, justice, and adherence to the terms of the treaty, ed.
claim all the territory, on the South of the River St. Lawrence, and of its great reservoirs, which belongs to the United States, as she now does the upper half of the basin of the River St. John, which lies West of the line drawn due North from the source of the River St. Croix.
On the other hand, as it will be conclusively established in the course of this inquiry, that the upper basin of the St. John is, by the express terms of the treaty, within the boundaries of the United States; in what respect, on the principle she assumes, is the right of Great Britain to that territory better founded, than that of the United States to the lower basin, and to the mouth of that River; that is to say, to the most valuable part of the Province of New-Brunswick?
In the same manner the Southern boundary, from the banks of the Mississippi, extends to the source of the St. Mary's River, crossing, not far from their mouths, the great Rivers Mobile and Appalachicola, and numerous other considerable streams, leaving the mouths of all those rivers, together with a narrow slip along the sea coast, without the Boundaries of the United States; whilst the whole of the upper, or more than nine-tenths of the country watered by those rivers and their tributary streams, is, by the treaty, declared to be within their dominions.
The Rivers St. Croix and St. Mary, from their mouths to their sources; the River Connecticut, from its source to the 45th degree of North latitude; the Mississippi, from the latitude of the Lake of the Woods to that of the 31st parallel; the water communication between Lake Superior and that of the Woods; that Lake; a due West line from its North-western extremity to the Mississippi, and finally the due North line from the source of the River St. Croix to the Highlands, complete the description of the boundaries prescribed by the treaty.
Not a single portion of the Boundary is described by the treaty, as dividing from each other the rivers flowing in different directions; that alone excepted, which extends from the North-west angle of Nova Scotia to the North-westernmost head of Connecticut River.
The United States contend, that, through its whole extent between those two points, and in no other part of it, the Boundary line must divide the rivers as described in the Treaty.
And when Great Britain insists, that the intention of the negotiators was to divide the rivers, so as to assign to each Power, respectively, the whole country situated on those, the mouths of which were in their territories; it is for the purpose of drawing the extraordinary inference, that the only portion of the Boundary, which is expressly designated by the treaty as dividing, is precisely that which was intended, not to divide the rivers that empty themselves into the River St. Lawrence, from those that fall into the Atlantic Ocean.
Let it be further observed, that, with respect to the waters of the River St. John, the Boundary was established, and the British claim is now asserted in direct contradiction
to the suggested intention. It was known to the framers of the treaty, as will ap. pear by Mitchell's Map, that the due North line must necessarily cross the Western tributary streams of that river. The line does accordingly cross some of its waters, within two miles of the source of the St. Croix, and before it reaches Mars' Hill, no less than three of those tributary streams, viz: Bull's Branch, the River Meduxnekeag, and the Presqu'isle River. The country on the West and along thirty-eight miles of the due North line, watered by those three rivers, is acknowledged by Great Britain to be within the territories of the United States, although the mouth of that river is within her dominions.
Geographical practice is declared, in the British Statement, not to be the principal ground on which Great Britain rests her distinction between the Bay of Fundy, (and