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Surveys. have a faint and distant view, extended in a direction parallel to that of the water
courses, or separated these from each other at their sources; and that the total omission, in Mr. Odell's Sketch, of the water courses, which it was indeed impossible for him to have seen, gave to that part of the country the fallacious appearance of a continuous and huge mountain.
From the simple fact that this proposal was made, it is inferred, in the British Statement, that the statements and delineations of the British Surveyors are substantially correct.
The “survey and report of the American Surveyor, Johnson,” is set aside, in another part of the Statement, as to a part of the American line, “ as altogether ideal and unfounded in fact.” It is declared to be so, because it was founded on views taken from Green Mountain, about forty to fifty miles distant from that part of the line.(e) Those views are admitted to be no evidence. But, as the qualifications and integrity of the American may be presumed to be equal to those of the British Surveyors, it is clear that, had sufficient attention been paid to the nature of the pretended surveys referred to, it would, by parity of reasoning, have also been declared in the British Statement, that “the surveys and reports of the British Surveyors, Mr. Odell and Mr. Campbell, must be set aside, being, with respect to the country along the British line, altogether ideal and unfounded in fact."
The mountainous character of the Eastern part of the British line is proved no otherwise than by those views and delineations. With respect to the next thirty miles, an appeal is also made to a brief and general account of that part of the country, then altogether unexplored, in Mr. Greenleaf's "Statistical View of the State of Maine,” published in 1816. The Western part of the line seems to have been given up in the Statement, although some mountains, never visited by any Surveyor, have found place in that quarter, on the British Transcript of Map A, along the dividing line itself.
But it is important to observe, that the dividing highlands, acknowledged as such by both parties, do not appear to have, every where, that mountainous character which is required according to the British definition.
The Metjarmette Portage, (f) which is common to the two conflicting lines, is of of a similar character with those of the River Ouelle and of the Aliguash. The sources of the Metjarmette, of the Penobscot, and of the St. John, rise close to each other in the same swamp. The acknowledged highlands, for an extent of ten miles in a Southerly direction from that Portage, are designated in Mr. Campbell's Sketch as “low land.” And the British Surveyor, Mr. Carlile, speaking of the height of land between the River Connecticut and the sources of the St. Francis, which is a tributary cf the River St. Lawrence, says, that its sources are found in the same swampy ground, and a few rods from those of Indian and Hall's Streams, which empty themselves into the River Connecticut.
OBJECTIONS DERIVED FROM A PRESUMED CONSTANT ASSERTION OF THE BRITISH
CLAIM SINCE 1783.
Several documents have been adduoed, with a view to prove that, from the year da, 1783, 1794.
1783 to this time, the Governments of New Brunswick and of Canada have both exercised jurisdiction over the contested territory. The total irrelevancy of those
(e) British Evidence, No. 11, page 155.
(f) The point L, on the American Transcript of Map A. The Metjarmette is a tributary stream of the Chaudiere, which falls into the River St. Lawrence.
which relate, either to the Fief of Madawaska, or to a notice 'concerning certain In- Attempts by Candian hunting grounds, has already been shewn. Without dwelling. at present on the palpable inconsistency of that simultaneous claim by both Provinces, we will briefly examine the acts alluded to.
In the year 1784, a native Indian was tried and convicted by a Court of the Province of Quebec, and accordingly executed for a murder, committed, as it is suggested, on the waters of the River St. John. In the indictment the place is stated in a vague and loose manner, viz: “near the village of Madawaska,” the situation of which is not known, and without mentioning the Parish, or any other precise designation. According to the Quebec Gazette, the crime was committed below Kamouraska. This place being on the bank of the River St. Lawrence, that expression, in its usual acceptation, means “ lower down on the river," and therefore within the acknowledged boundaries of the Province.
In the years 1789–91, a suit was instituted and judgment obtained, before the Court of Common Pleas of Quebec, by some inhabitants of Canada, against persons residing on the River Madawaska. The defendants having objected to the jurisdiction of the Court, alleging that they were resident of the Province of New Brunswick, the Court ordered both parties to bring proof, whether Madawaska and the Great Falls were in the Province of Quebec. The advocate of the plaintiffs declared that he had no other proof to produce, but their licenses and a preceding order of the Court in relation to the pleadings. This was an acknowledgment that he was unable to pro duce any proof, since, according to the Proclamation of 1763, the Governors were authorized to grant trading licenses, in reference to the residence of the traders, and not to the place of trade. The Court repelled the objection, solely on the ground of the defendants not having filed their exception and adduced their proofs in proper time and form. A Sheriff's notice was published in the Quebec Gazette, for the sale of lands at Madawaska belonging to the defendants: but it does not appear that the sale ever took place. Another judgment of the year 1792, by a Court in Quebec, of which no opinion can be formed, as it is not produced, is alluded to in a petition complaining that its execution was impeded by the Government of New Brunswick.
An extract from a list of the Parishes in the Province of Quebec, taken from the minutes of the Executive Council for 1791, includes that of Madawaska: the date is uncertain; and the act erecting the Parish is not produced. An order of the Council of the year 1785, for opening a road, from Kamarouska on the River St. Lawrence, to Lake Temiscouata at the foot of the dividing highlands, has also been adduced in evidence.
There must have been a great want of proofs, when such inconclusive documents are resorted to, in order to establish the facts of actual jurisdiction and possession. But it will be admitted that, taken together, they afford sufficient proof of the desire and perhaps a hope at that time, that the jurisdiction of the Province might be extend ed over the upper branches of the River St. John.
The following transactions throw a clearer light on the views, both of that Government at that time and of that of New Brunswick; and, whilst shewing their disregard, exhibit, throughout, involuntary acknowledgments of the right of the United States of that section of country.
In the year 1787, Mr. Holland was ordered, by the Governor of the Province of Quebec, to proceed to the Great Falls on the River St. John, in order to meet the Surveyor General of New Brunswick, and to assist in marking out the boundary, where it crossed the road of communication between the two Provinces.
In the interview which took place between them, each party was able to prove, that the territory in question was not within the limits of the other Province. The Surveyor of New Brunswick declared, that he would proceed to the height of land
Attempts byCana on the carrying place, situate between the River St. Lawrence and Lake Temiskouda, 1783, 1794. ata, .
to examine which way the waters incline on the heights there, that by their course he might be enabled to ascertain the boundary between the Provinces of Quebec and New Brunswick, as all the streams running into the rivers which empty themselves into the River St. John, are in the Province of New Brunswick, and those which fall into the St. Lawrence, are in the Province of Quebec.” And he produced his instructions from the Governor of New Brunswick, directing him to be governed by the Act of Parliament, called the Quebec Act.
On the other hand, although it could not be known with any certainty, at that time, where the due North line from the source of the River St. Croix would strike the highlands, it was highly improbable that the point of intersection would be found as far West as the Temiskouata Portage. Mr. Holland, after urging some other considerations, accordingly represented, “ more specially, that the fixing that limit would materially affect the Boundary between us and the United States of America; and that a large territory would thereby be saved, or lost to His Majesty's dominions."
A safe and convenient communication between the two Provinces was at all events.to be preserved: and how to alter for that purpose the boundary of the United States, as defined by the treaty of 1783, was the difficulty. Mr. Holland appears to be entitled to the credit of having been the first to propose the substitution of a “country extremely mountainous," to the dividing highlands designated by that treaty. He observed that it was generally understood in Canada, “that the line between the Provinces of Quebec and New Brunswick, should run from the head of Chaleur Bay, along the highlands, in a Westerly direction to the Great Falls on the St. John's River, and from thence West, to the Westernmost, or main branch of the Connecticut River."
Mr. Holland had not at that time, any knowledge of the country: but he did not fail to find it agreeing precisely with his hypothesis. Not being able to agree with the Surveyor of New Brunswick, he proceeded, he says, with his party “to the Great Falls, where we found the country extremely mountainous; and, from information gathered from different persons, who have been from the St. John's River back in the country, and my own observations, have no doubt but that these mountains are the range which extend from the Bay of Chaleur to that River."
This substitution, (called a definition) of a generally or extremely “mountainous country," without regard to the division of certain specified rivers, to the “highlands which divide the rivers,” &c. has the singular advantage of rendering them moveable at will. And it cannot be doubted that, had the British Agent under the late commission becn from Canada, instead of New Brunswick; the mountainous country, extending Westwardly from the Great Falls, would have been pertinaciously contended for in behalf of Great Britain, instead of insisting, as according to the new hypothesis is now done, that the height of land, contemplated by the framers of the trealy, commences at Mars' Hill.
A committee of the Executive Council of the Province of Quebec, appointed the same year, (1787) to consider that subject, appears not to have sustained to its full extent Mr. Holland's report, and to have been of opinion that, in order to extend the jurisdiction of Canada over the River St. John, an alteration of its existing Southern boundary was absolutely necessary.
They say, “If the Province of New Brunswick may of right claim the sources of rivers that take their rise on the height of land which divides the rivers that empty themselves into the St. Lawrence, from those which fall into the Atlantic Ocean, the ancient limits of this Government will be curtailed towards New Brunswick, and Seigneuries under Canadian grants, as far back as the years 1623 and 1683, be taken into that Province," &c.
The committee then propose that the Province of Quebec be separated from Attempts iz.Can
1794. that of New Brunswick, by a line running along the highlands, which extend from the head of Chaleurs Bay to the foot of the great fall of St. John's River, and from thence, crossing the river, (so as to include the whole of the portage or carrying place) and continuing in a straight line towards the sources of the River Chaudiere, which rise on the highlands, which commence at the said head of the Bay of Chaleurs, and extend all the way to the North-westernmost head of Connecticut River.” This
paper is considered, in the British Statement, as "highly valuable and inportant, especially as proving that whatever disputes may have existed between the respective British Provinces, as to their several limits, not the smallest doubt seems to have been ever entertained by them as to the right of Great Britain to the whole territory thus contested between the Provinces."
And it is afterwards observed, that “the claims of this Province, (New Brunswick) and Canada, with respect to this and other parts of the territory in this quarter, are conflicting inter se, and shew the uncertainty of their respective Boundaries, which in fact, have never been settled, and may require the interference of the mother country to adjust: but these conflicting intercolonial claims, which have arisen since the Treaty of 1783, are altogether irrelevant to the present controversy between Great Britain and the United States, as a foreign power, and under that Treaty."
It is perfectly true, that the United States have nothing to do, and no interest whatever in that part of the Boundary, between New Brunswick and Canada, which was then and still remains unascertained. That portion, which has not been settled, and may require the interference of the mother country to adjust,” is only that which must unite the Western extremity of the Bay des Chaleurs to the dividing highlands, and which lies East of the contested territory.
But the Western boundary of New Brunswick is undisputed, and has, ever since · the year 1763, (either as part of Nova Scotia or as New Brunswick) been, according to the Commissions of the Governors, a due North line from the source of the River St. Croix. Wherever that line may terminate, the territory West of it is indisputably without the boundaries of New Brunswick, and, according to the treaty of 1783, within those of the United States.
The Southern boundary of the Province of Quebec or Lower Canada is described, in the Commissions of the Governors, in the same words by by which the Northern boundary of the United States is designated in the treaty of 1783, and again in the same words (with only the substitution of " height of land” to “highlands”) in the report of the committee of the Provincial Council; viz: “the highlands which divide the rivers that empty themselves into the St. Lawrence from those which fall into the Atlantic Ocean.” The territory South of that boundary is indisputably without the limits of Canada, viz: in New Brunswick, if East of the due North line from the source of the River St. Croix; in the United States, if West of that line.
We will now see, how far the Documents, relating to the conflict which took . place at that time, sustain “ the right of Great Britain to the whole territory thus contested between the Provinces."
Mr. Holland had, with his instructions, received from the Governor of Canada, (Lord Dorchester) copies both of the boundaries of the two Provir.ces, as prescribed by the Commissions of their Governors, and of the article of the treaty of 1783, relating to boundaries. And his declaration proves, that he was perfectly aware that, if the Southern boundary of Canada was along the highlands which divide the waters of the River St. John from those of the“River St. Lawrence, the territory lying on the River St. John, West of the due North line, was part of the United States, and not of New Brunswick.
Attempts by Can The Lieut. Governor of New Brunswick (Thomas Carleton) had made no mention ada, 1783, 1794.
in his instruction to the Surveyor General of that Province of its Western boundary, which, by his own commission, was prescribed to be “a line drawn due North from the source of the River St. Croix to the Southern boundary of the Province of Quebec.” And without adverting, either to this, or to the boundary of the United States as fixed by the treaty, he only directed him to be governed by the Act of Parliament for establishing the Province of Quebec, which determines that boundary to be the highlands which divide those waters that empty themselves into the River St. Lawrence, from those which fall into the Allantic Ocean." (9)
The Surveyor General declared, that he was bound to observe those instructions, and, having accordingly only to determine the position of those highlands, gave it as his unalterable opinion, that the boundary ought to be fixed at the height of land on the cannying place, situate between the River St. Lawrence and Lake Tensiscouata. The height of land between the River St. Lawrence and Lake. Temiscouata, or, in other words, the portage of that name, was therefore, in the opinion of that officer, the boundary of the United States; since, by the treaty of 1783, that boundary is declared to be along the highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean.”
It is equally. clear, that the committee of the Executive Council of the Province of Quebec was quite sensible that the Southern boundary of that Province, as defined in the Commissions of its Governors, would curtail the ancient limits of Canada, as it: existed under the French Government. What they propose is a substitution of Mr. Holland's hypothetical highlands to those that had been designated by the Proclamation of 1763, by the Quebec Act of 1774, by the treaty of 1783, and by all the commissions of the Governors of the Province, as its Southern boundary. They ask accordingly that the Province of Quebee: be separated (hereafter) from the Province of New Brunswick by Mr. Holland's presumed highlands.
The admission that the change could not be effected, without an alteration of the houndaries prescribed by the Acts of the British Government, is tantamount to an acknowledgment that an alteration of the terms of the treaty was necessary for that purpose; since the same descriptive words are used in those Acts (gg) and in the treaty..
It was quite immaterial, as to the effect on the limits of Canada, by whom the ad-verse claim might be set up: and the committee declares, that the ancient seigneuries, including the Fief of Madawaska, and the Acadian or Madawaska Settlement, or, in other words, that the waters of the River St. John would be thrown out of the Province of Quebec, if the height of land which divides the rivers that empty themselves into the St. Lawrence from those which fall into the Atlantic Ocean, could of right be claimed (whether by the United States or New Brunswick) as a boundary. towards Canada. As it is not and cannot be denied, that the boundary thus described. is that which, in the same words, is declared by the treaty to be the boundary of the United States, this declaration of the committee again explicitly admits, that the waters of the River St. John are included within the boundaries of the United States.
The conflict between the two Provinces on that occasion, and the confused arguments alleged on both sides, arose solely from their mutual wish, to appropriate to themselves what belonged to another party, and from the impossibility of reconciling the pretensions of either with, not only the treaty of 1783, but all the public acts of Great Britain relating to those boundaries.
Those documents, together with some others, were taken into consideration by the Executive Council, on the 4th August, 1792. And it was thereupon “ Ordered
(g) “ Sea" in the Quebec Act and not “ Atlantic Ocean." But Governor Carleton understood the iwo expressions to be, as they are in relation to this boundary, synonymous.
igg) Viz: The Commissions of the Governors of the Province of Quebec.