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Negotiations et The British Plenipotentiaries at that time, when explaining what they meant hy a Gbent
revision of the frontiers generally, and after saying that Great Britain did not desire it with any view to the acquisition of territory, as such, enumerated amongst the subjects of discussion, not the ascertaining in conformity with the Treaty of 1783, but “ such a VARIATION of the line of frontier, as might secure a direct communication between Quebec and Halifax."(y)
This was not a casual expression, but a deliberate and solemn exposition of the terms on which Great Britain proposed to make peace. One of the Plenipotentiaries, who now occupies a distinguished place in the British Cabinet, was at that time one of the Secretaries of State for the Colonial Department, and probably the member
the British Government most intimately acquainted with the interests and desires of the British Provinces, and with whatever related to that subject. There could not be a more express acknowledgment, than the proposition made under such circumstances, and in such terms, that the desired communication could not be obtained without a variation of the line established by the Treaty of 1783.
It was only after the explicit declaration of the American Plenipotentiaries, that they had no authority to cede any part of the territory of the United States, and would subscribe to no stipulation to that effect; and after having lost all hope of obtaining a variation of the line, that the British Plenipotentiaries changed their ground. It was then, for the first time, gratuitously asserted, that the American Plenipotentiaries were aware that the boundary asserted at present by the American Government, by which the direct communication between Halifax and Quebec became interrupted, was not in contemplation of the British Plenipotentiaries who concluded the Treaty of 1783.
Even this assertion was accompanied by a declaration, that the British had not anticipated the statement made by the American Plenipotentiaries, -viz: that they had no authority “to cede any part, however insignificant, of the territories of the United States, although the proposal left it open to them to demand an equivalent for such cession, either in frontier or otherwise.”(z)
The American Plenipotentiaries answered, that they had never understood that “the British Plenipotentiaries who signed the treaty, had contemplated a boundary different from that fixed by the treaty, and which required nothing more in order to be definitively ascertained than to be surveyed in conformity with its provisions ;" and that they had “no authority to cede any part of the State of Massachusetts, even for what the British might consider a fair equivalent.” (a) And they subsequently declared that they did not decline discussing any matter of uncertainty or dispute respecting the boundaries in that or in any other quarter,” and that they were “prepared to propose the appointment of Commissioners by the two Governments to extend the line to the highlands, conformably to the treaty of 1783.” But they added that “the proposal, however, of the British Plenipotentiaries was not to ascertain, but to vary, those lines, in such manner as to secure a direct communication between Quebec and Halifax ; an alteration which could not be effected, without a cession by the United States to Great Britain of all that portion of the State of Massachusetts intervening between the province of New Brunswick and Quebec, although unquestionably included within the boundary lines fixed by that treaty. (b)
To this last observation the British Plenipotentiaries replied, that the British Government never required that all that portion of the State of Massachusetts intervening between the province of New Brunswick and Quebec, should be ceded to
(y) Written Evidence, No. 46~British Note of 19th August, 1814.
(a) Amer can Note of 9th September.
Negotiations a: Great Britain, but only that small portion of unsettled country which interrupts the Ghento communication between Halifax and Quebec, there being much doubt whether it does not already belong to Great Britain. (c)
The proposal of the American Plenipotentiaries to appoint Commissioners was acceded to, and extended to the whole line of frontier, from the source of the river St. Croix, to the Lake of the Woods. And the contingency of a disagreement between the two Commissioners was provided for ; no power to vary the line being given in either case ; but the express purpose being, that it should be ascertained and surveyed in conformity with the provisions of the treaty of 1783.
Thus it appears, that the American Plenipotentiaries denied the intentions ascribed to the British Ministers who had signed the treaty; that'they uniformly rejected any proposal to vary the line, and to cede any part of the territory of the United States, or of the State of Massachusetts ; and that they agreed to the reference, only on the general ground of leaving to an amicable mode of settlement all the questions relative to the whole of their extensive frontier, which had not yet been actually ascertained and surveyed.
It will now be asked, whether a demand made, on a most solemn occasion, by the British Government itself, of a VARIATION of the boundary line defined by the treaty of 1783, at the same time that another demand was also made of one half of the great lakes, and of the rights of sovereignty over the shores secured to the United States by the same treaty ; whether that demand, connected, not only with the intervening declarations of the British Minister to the United States, and of the British Agent on the adjoining portion of the same boundary, but also with the entire abandonment during the twenty preceding years, of any claim to the jurisdiction over the contested territory, by that British Province within whose boundaries, if belonging to Great Britain, that territory was clearly included; whether such demand, under such circumstances, was not a most explicit acknowledgment of the previous undoubted right of the United States to that territory, and does not decisively refute the late assertions of an exclusive and undisturbed possession by Great Britain, and of a constructive claim but lately advanced by America ?
And it might also be asked, what degree of confidence the British Plenipotentiaries eould have had in that claim, in behalf of Great Britain, so reluctantly suggested, and never, to the last moment, mentioned, but by the name of cession, with the tender of an equivalent, and in the shape of a doubt? And what was meant by that small portion of unsettled territory, not including therefore the Madawaska Settlement, the cession of which alone was required, and to which alone applied the concluding observation, that there was much doubt whether it did not already belong to Great Britain ?
An allusion has been made, in the British Statement, to a letter written by one of the. American Plenipotentiaries to his Government, subsequent to the signature of the treaty. Every thing contained in a letter of that description is wholly irrelevant to the question; since a minister, when writing lo, does not act as the organ of his Government. It will be sufficient to observe here, in the first plaee, that it has been fully demonstrated, in the First American Statement, by the very document to which he appealed, that the American Plenipotentiary was altogether mistaken in supposing that the contested territory was not within the boundaries of the State of Massachusetts; and secondly, that if the boundary lines designated by the previous public acts of Great Britain, and adopted by the treaty of 1783, had embraced any portion of territory not included within the chartered limits of Massachusetts’ Bay, such portion would nevertheless have undoubtedly belonged to the United States. (d)
(c) British Note of Sth of October. () For some further observations on that letter, sce Note D, at the end of this statement.
New Brunswick Jurisdiction.
Much stress cannot be laid on the opinions or acts of either party subsequent to the treaty of Ghent, in relation to the contested territory which from that time became an avowed subject of discussion.
The continued jurisdiction of New Brunswick, eren after the due north line had been surveyed, has already been adverted to. The grant of a tract of land in the year 1825, and the subsequent arrest and trial of an American citizen, have afforded just grounds of complaint. But it is remarkable, that those very acts afford an additional proof of that inconsistency which naturally grows out of the British pretension.
No act of the province of New Brunswick could make a place which lay West, to be East of the due North line, nor therefore remove the district occupied by the Madawaska settlers within the boundaries of the Province.
The only thing which is decisively proved by those acts is, that in the opinion of the New Brunswick authorities, the contested territory is not within the boundaries of Canada. And they do not seem to have perceived, that this was tantamount to an acknowledgment that it did belong to the United States. For, if not in Canada, it is because the pretended highlands, extending from Mars' Hill to the North-westernmost source of the Penobscot, are not the Southern boundary of that Province.
And since the Southern boundary of Canada is identic with the Northern boundary of the United States, if it is to be found North of those presumed highlands, and even of the River Madawaska, the territory lying South of it, and North of the line claimed by Great Britain, makes part of the United States.
Of this the British Government seems at last to have become aware. Hence the effort, with the aid of the fief of Madawaska, and of some ancient attempts which have not been renewed for more than thirty years, to substitute to the usurped jurisdiction of New Brunswick, a pretended possession derived from Canada.
Accordingly, in the map of the British Possessions in North America, compiled from documents in the Colonial Department,” and ordered to be printed in June 1827, by the House of Commons, (e) the due North line is made to terminate at the Ristigouche River; the boundary line between the United States and Canada is laid down, according to the British pretension, from Mars' Hill to the Western source of the Penobscot; and all that lies North of that boundary and West of the due North line, including the Madawaska Settlement, is made part of Canada and not of New Brunswick.
But, whilst trying to avoid the inconsistency growing out of the usurped jurisdiction of New Brunswick, the Colonial Department was, from the nature of the British pretension, necessarily drawn into another.
It is in proof, that the Western and Northern boundaries of New Brunswick, and the Southern boundary, of Canada have not been altered since the treaty of 1783; (/) that the legal North-west angle of New Brunswick is identic with the North-west angle of Nova Scotia, established in the year 1763, and referred to and defined in the treaty of 1783 ; and that that angle is accordingly at the point of intersection of the due North line with the Highlands designated by the treaty, and forming the Southern boundary of Canada.
Instead of being on any highland, the North-west angle of New Brunswick is, in the map in question, placed in the bed of the River Ristigouche. And, forgetting that, by the treaty, the summit of the North-west angle of Nova Scotia was also the summit of the North-east angle of the United States, the Colonial Department has
(e) Engraved Map, No. 45.
placed that North-east angle at Mars' Hill, fifty miles South of the point where it places the North-west angle of New Brunswick or Nova Scotia. Mars' Hill, the pretended North-east angle of the United States, so far from being the North-west, is not even one of the angles of New Brunswick, but only a point on one of its boundary lines.
The same contradiction attaches to the legitimate acts of New Brunswick, in reference to the territory within its acknowledged boundaries.
Supposing a due North-east line to be drawn from Mars' Hill towards the Bay des Chaleurs, every place situated North-west of that line, will of course be North-west of Mars' Hill; and this last mentioned point cannot be the North-west angle of New Brunswick, if any such place is within the boundaries of that Province.
Yet the jurisdiction of the province has uniformly been exercised, both before and since the claim to the contested territory has been a subject of discussion, far Northwest of such supposed North-east line, as far at least as the Falls of the River St. John, and as the River Ristigouche above its junction with the Matapediac. Amongst the numerous annexed documents, (f) adduced in proof of that fact, will be found several laws for opening roads as far as the Ristigouche, for regulating the fisheries of that river generally, and for the erection amongst others of the county of Northumberland, and of the Parish of Eldon; as well as grants of land to Mann and others, on the Ristigouche, to John King, on the St. John at the mouth of Salmon River, and to A. Stewart, above the Great Falls of the St. John. The position of those various places will be found on the American Transcript of the map A, and are all of them North-west of Mars' Hill.
This last mentioned point, which is near forty miles due South of Stewart's Grant, was not therefore in the opinion of the authorities of New Brunswick, the North-west angle of that province. And assuming the ground, that the contested territory was, as it is pretended there, a part of the province, the contradiction between that supposed extension of New Brunswick, and the assertion that Mars' Hill is its North-west angle, will appear still more forcibly, since it is evident that, in that case, the North-west angle must be found on the Temiscouata Portage, more than one hundred miles Northwest of Mars' Hill.
THE BRITISH LINE EXAMINED.
TERMS OF THE TREATY
The Statement on the part of Great Britain, resolves itself into an attempt to show
Treaty. that the River St. John is not one of those rivers falling into the Atlantic Ocean, which were intended by the Treaty to be divided from those which empty themselves into the River St. Lawrence: and that the highlands, described hy the treaty as dividing those rivers from each other, are situated about 120 miles West of any part of the line drawn due North from the sourc. of the River St. Croix, and extend only from the North-westernmost source of the River Penobscot, to the sources of the Connecticut River.
The various reasons alleged to sustain those two positions have been examined at large, and, it is believed, conclusively refuted. But, it was incumbent on Great
(8) Sce Written Evidence, Nos. 47 and 48, and Printed Statutes.
Britain to have shewn, in the first place, that the boundary line claimed, in conformity with that hypothesis, could be reconciled with the terms of the Treaty. The true question at issue, and to which we must now revert, is, whether the North-west Angle of Nova Scotia may, in conformity with the treaty, be placed on or near a certain hill, which does not divide, and is not, in any direction, within 120 miles of any highlands that do actually divide the rivers designated by the treaty; and whether the boundary line may, in conformity with that instrument, for three-fifths of its extent from the North-west Angle of Nova Scotia, be along highlands which do not divide those rivers from each other.
The North-west Angle of Nova Scotia, is, by the treaty, declared to be formed by a line drawn due North from the source of St. Croix River, to the highlands."
Immediately following the last mentioned words, viz: “ to the highlands,” the words (in reference to the boundaries,) are, “along the said highlands, which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean."
The words, “the said highlands," identify, therefore, the highlands at which the due North line terminates, with the highlands which divide the rivers specified by the treaty.
The East boundary of the United States, is by the treaty declared to be, “a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy, to its source; and from its source, directly North to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean, from those which fall into the River St. Lawrence.”
Thus the line drawn due North, or directly North, from the source of St. Croix River, is, in two different clauses of the treaty, declared to extend to, and to terminate at, the highlands which divide the rivers designated by the treaty. That line is that which forms the North-west Angle of Nova Scotia. The Northern termination of that line, and the summit of that North-west Angle are identic. It appears impossible to have devised expressions, that could, with greater precision, have determined the position of the North-west Angle of Nova Scotia, as being that point, on the highlands which divide the rivers specified by the treaty, where the said highlands are intersected by the line drawn due North from the source of the River St. Croix.
It is impossible to form any conjecture of the reasons which may be alleged, in the Definitive Statement on the part of Great Britain, in opposition to those explicit and express terms of the treaty. We can only recur to those which were alleged by the British Agent and the British Commissioner, under the late Commission: and we may venture to assert, that, now as then, it will be necessary to resort, not merely to an unnatural interpretation, but to a positive alteration of the terms of the treaty, by the subtraction of some of the words used in it, or by the interpolation, or substitution of other expressions.
The British Agent argued, without taking any notice of the word said, which identifies the highlands on which the North-west Angle of Nova Scotia is placed by the treaty, with the highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean; and as if that word said made no part of that clause of the treaty. And, with respect to the description of the Eastern boundary, as contained in the latter clause, he contented himself with saying, that it must not be construed literally; which means, that that clause must be considered as null, since it is susceptible but of one construction.
The opinion of the British Commissioner may he considered as of greater weight; and we will quote his own words from his report to the two Governments.
6. The extension of the due North line beyond the River St. John, does not agree with the words of either of the said treaties, which direct that the due North line from