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Terms of the of a line drawn due North from the source of the River St. Croix, with a line running Treaty. from the North-westernmost head of Connecticut River, along the highlands
which divide the rivers Chaudiere and De Loup, falling into the River St. Lawrence, from the rivers Androscoggin, Kennebec and Penobscot, falling into the Atlantic Ocean; such line being continued along the highlands in that quarter, in such manner as to leave all the sources of all the branches of the said Rivers Androscoggin, Kennebec and Penobscot, South of such line, and within the territories of the United States, until it meets the said line drawn due North from the source of the River St. Croix, at or near Mars’Hill." (0)
This is an explicit commentary on the third version of the British Agent. The line is reversed, and, where it leaves the highlands prescribed by the treaty, it is to becontinued along other highlands which do not divide rivers falling into the Atlantic Ocean, from those which empty themselves into the River St. Lawrence.
The British Commissioner decides in favor of the British pretension, and sustains his decision in the following words—viz: “ It is obvious that the order of description in the treaty of 1783, was reversed from the proclamation, its prototype; and hence arises the error of the agent on the part of the United States, who contends that the due North line from the source of the River St. Croix is to be extended until it arrives at. Highlands which divide the Rivers,” &c. &c. &c.
6. But this is not the fact, the words of the treaty are,—due North from the source of the St. Croix River to the highlands, along the said highlands which divide those rivers," &c. &c. &c.
6. Now what does the word "along,' in its ordinary signification import? Certainly a continuation of those highlands, in which continuation will be found highlands which divide the rivers, &c. &c. &c. Indeed the word along, used in the treaty of 1783, is, in this instance, synonymous with the word passing, in the proclamation."(9)
We have not been fortunate enough to comprehend clearly this reasoning. The word passing is not used alone, or instead of along, in the proclamation: the words there, are, that the line passes along. According to the Commissioner, the word along is synonymous both with passing and continuation; which two last words are of course also synonymous: and what he would gain, by substituting the word passing or passing along, to the word along, is not perceived.
But, that along, in its ordinary signification, or in any case whatever, imports, or ever has been used in the same sense as continuation, cannot be seriously asserted. What the British Commissioner intends, is, under color of affixing to that word a sense which it never had, to suggest the insertion of the word continuation. And the article would then read “due North from the River St. Croix, to the continuation of the highlands, along the said continuation of the highlands which divide the rivers," &c.
Instead of the words "continuation of,” the suggestion in the British Statement is in reality to insert the words “which connect themselves with:” so that the article would read, “ along the said highlands which connect themselves with the highlands which divide the Rivers," &c. But care has been taken not to bring that interpolation in full view, by avoiding any such discussion of the terms of the treaty as had been hazarded by the former British Commissioner: and the argument proceeds as if the essential condition of dividing from each other the rivers therein described, in reference both to the North-west angle of Nova Scotia, and to the boundary line along the Highlands, made no part of the treaty.
(n) Written Evidence, No. 53. p. 371.
Terms of the
But without even adverting to the unmanageable description of the Eastern boun
Treaty. dary, whichsoever of those various readings may be selected;
Whether to interpolate somewhere the words " such line being continued along the highlands in that quarter;"
Or, to reverse the description and to omit the word " said:"
Or, to insert instead of the words to the highlands," either “to the line of” or "to the continuation of the highlands;"
Or, to substitute to the words "highlands which divide,” either “highlands to the place where they divide,” or “ highlands which connect themselves with highlands which divide,” or “highlands which in their Westwardly course divide," or, “highlands which in any part of their extent divide;"
Or, to suggest whatever other mode ingenuity may devise; it is clear, that hghlands which do not divide certain speeified rivers, though on the line of, in continua jion of, or connected with, are not the highlands which divide those rivers.
With leave thus to alter in some way or another the terms of a treaty, it may be bent to any construction whatever. And it is hardly necessary to observe, that interpolations, omissions, or alterations in its expressions, are not an interpretation of a treaty, but the substitution of other provisions to those prescribed by the instrument.
The assertion that the British line does actually divide the rivers designated by the treaty, is also founded on a glaring perversion of the meaning of the term “to divide.”
It will be seen, by the map A, that the boundary line, claimed by Great Britain, from Mars' Hill to the sources of the Chaudiere, divides, through nearly its whole extent, the sources of the Penobscot River from those of the Southern tributary streams of the River St. John. And it is declared, in the concluding paragraph of the first branch of the British Statement, that Great Britain claims that, from Mars' Hill, “the line of boundary of the United States be traced South of the River St. John to the Northwesternmost head of Connecticut River, at the heads of the Rivers Penobscot, Kennebec, and Androscoggin, which rivers Great Britain maintains to be those intended by the Treaty, as the rivers falling into the Atlantic Ocean, which are to be divided from Those which empty themselves into the River St. Lawrence."
Was it by this intended to assert, that a line, which, for a distance of one hundred miles, divides the sources of the Penobscot from those of the St. John, is a line which divides the sources of the Penobscot from those of rivers which empty themselves into the River St. Lawrence?
The British Commissioner declares it also to be evident, “that the line extending thence (from Mars' Hill) along the highlands, in a Westerly direction, described by the red line on the general map made by his Majesty's Principal Surveyor, (r) (being the same, as the red line on map A, claimed on the part of Great Britain) does divide, as directed in and by both those treaties (that of 1783 and that of Ghent,) the rivers which empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean; thus in every particular satisfying the words of the above named treaties, and corresponding," &c. (s)
It seems to have been intended, by that paragraph of the British Statement, and by that dictum of the British Commissioner, to assert, that a line along the sources of the Penobscot, in its origin at Mars' Hill, 100 miles distant from any of the rivers that empty themselves into the River St. Lawrence, and which, at its termination only, reaches the highlands in which any of those tributary rivers have their sources, does,
() The map here alluded to, not having been admitted to be filed by the Board of Commissioners, has not been adduced in evidenee.
(s) Written Evidence, No. 53, p. 372
Terms of the Treaty.
through its whole extent, actually divide the upper branches of the Penobscot from the rivers that fall into the River St. Lawrence.
The term “ to divide” is there made synonymous with that “to lie between.”
Whatever does divide, (or separate) must be contiguous to both the things which are to be divided, (or separated) one from the other.
A line can divide no other territories, (or surfaces,) from each other, but such as are contiguous one to the other. If not contiguous, they are divided, not by a line, hut by the intervening territory (or surface.)
In this instance, the rivers which empty themselves into the River St. Lawrence are divided from the sources of the upper branches of the Penobscot, 1st. by the highlands which divide the first mentioned rivers from the Northern tributary streams of the St. John; 2dly, by the entire basin of the River St. John; 3dly, by the highlands which divide the Southern tributary streams of this river from the upper branches of the Penobscot.
These last mentioned highlands, which are those claimed by Great Britain as the boundary line, divide no other rivers from each other, but those of the Penobscot and of the St. John. They divide the rivers that fall into the Atlantic Ocean from those which empty into the River St. Lawrence, in the same manner precisely, as the Thames divides Surrey from Suffolk, and as the Rhine divides France from Poland. Yet that assertion, if it was so intended, is the only attempt which has been made, in the British Statement, to reconcile the pretension of Great Britain with the terms of the Treaty.
It has been our intention, in this section, to reduce the question to its simplest terms, by shewing that the line claimed by Great Britain, as the bouudary between her dominions and those of the United States, is wholly irreconcilable with the express provisions of the treaty.
It is not deemed necessary to advert again to the impossibility, that Mars' Hill, considering its position in relation to the Western extremity of the Bay des Chaleurs, should be the North-west angle of Nova Scotia. But it is proper to repeat, that the description in the treaty, of highlands dividing certain specified rivers, applies, not only to the boundary between the United States and Great Britain, but also to that portion of the Northern boundary of Nova Scotia, which, extending Eastwardly from the summit of the angle, does, according to the treaty, form the North-west angle of Nova Scotia. It is preposterous to say, that a line described as dividing rivers from each other, may intersect the largest river in the Province, and that the bed of that river may, in any sense of the word, be deemed « highlands.” And a mere inspection of Map A, or of Mitchell's Map, is sufficient to shew that no line can be drawn from Mars' Hill, in an Eastwardly or North-eastwardly direction, which will not, with. in less than ten miles, intersect the River St. John and sink to its level.
Intentions.—The terms of the treaty were too explicit to admit the supposition that they conveyed a meaning different from that intended by the negotiators. The attempt, to appeal from those terms to intentions gratuitously ascribed to those Ministers, has accordingly failed altogether.
The broad assertion, (t) that they intended to assign to each Power the whole of the rivers which had their mouths in their Territories, respectively, has not only been
1) British Statement, page 10 and passim.
shewn to be unsupported by any proof or evidence whatever to that effect : but it has Inteatione been decisively refuted by the general tenor of the treaty, through the whole of which there is a constant departure from that pretended “ main object” of the negotiators.
It has likewise been conclusively shewn that they did not, in order to effect that purpose, instead of defining the boundary along the highlands in terms corresponding with that presumed intention, resort to the singular mode of describing the River St. Croix as having its mouth in the Bay of Fundy, (u) and of designating, in another clause, the Gulf of St. Lawrence by its specific name: there being in both instances sufficient reasons for those specific designations, which intended, where used, for a particular purpose, were wholly inapplicable to the clause in which that boundary was described, and could not affect the obvious and incontrovertible sense of the terms used in the description.
The vague and indeterminate meaning of the term “highlands," when used alone, gave an opportunity for attempting to perplex the subject. (v) To try to ascertain the import of a word in a particular sentence, by considering it apart from expressions which are there its inseparable adjunct, must necessarily lead to an erroneous result. But it has also been decisively shewn, that the framers of the treaty had not a “ generally mountainous country” in view, and that the term “highlands," either in its general sense, or in that which has been consecrated by local usage, was the most appropriate which could have been selected, for the purpose of designating, without reference to its absolute elevation, any ground which divides rivers from each other.
The inferences attempted to be deduced, from the proposal on the part of America, to make the River St. John the boundary, from the Canadian origin of the Fief of Madawaska, and from the incongruous acts or attempts of the British Provinces, do not, it is believed, require any notice. (w)
There was no necessity, on the part of the United States, to resort to the intentions of the framers of the treaty. Yet they have been anxious to shew that their reliance was not exclusively on the letter of that instrument, that the expressions used in describing the boundary were not carelessly and inadvertently adopted, and that the boundary claimed by them, was that which alone could, at the time, have been intended by the parties to the treaty.
With that object in view, it was proved, in the First American Statement, that the true intention of the two Powers was, to confirm the boundaries designated in the Charter of Massachusetts' Bay, as defined on the East by the Commissions of the Governors of Nova Scotia, and as modified towards the North by the Proclamation of 1763, and by the Quebec Act of 1774.
The Charter of Massachusetts' Bay, the antecedent Public Acts of Great Britain, and the subsequent Documents, prior to the Proclamation of 1763, have been adduced principally for the purpose of shewing the coherence and connexion of the title, and that, notwithstanding some efforts made to encroach on the Chartered Boundaries of Massachusetts' Bay along the sea coast, that Colony had, from the time when Nova Scotia was separated from it till the year 1763, continued to be bounded on the East by the Western boundary of Nova Scotia, and on the North by the River St. Lawrence.
It must, at the same time, be distinctly understood, that there is no intention to discuss, if at all controverted, any abstract question of right, which may have been incidentally referred to, as making part of the history of the case.
(w). British Statement, page 34. Summary of Arguments, 1st Argument.
2d, 3d, & 4th Arguments. T
Whether there was a power in the King to alter the Charter, or wherever that power might be vested, it is now of no importance to examine. And, although the Charter of Massachusetts was undoubtedly the basis on which the United States negotiated, it was only necessary to prove, that the two Powers did by the treaty adopt, as the boundaries between their dominions in that quarter, those limits which, as early as the year 1763, had been designated by the Public Acts of Great Britain, and continued at the date of the treaty, to be the Western boundary of Nova Scotia and the Southern boundary of Canada.
This fact has been so conclusively demonstrated in the First American Statements that it is not presumed that it will be controverted.
The separate and secret article, annexed to the Provisional Articles of November, 1782, might have also been adduced, as a further proof of the adherence to the provin, cial limits previously established by Great Britain, which characterizes the treaty.. The boundaries of West Florida had, since the Proclamation of 1763, been enlarged, as will appear by the commissions of Governors Chester and Elliot, (x) by extending its Northern limit as far North as the latitude of the mouth of the River Yazoo, from the Mississippi to the River Appalachicola. It is agreed by the Separate Article, that that parallel of latitude should be the boundary between that Province and the United States, “in case Great Britain, at the conclusion of the present war, shall recover orbe put in possession of West Florida.” (y) That Province was by the definitive treaty ceded by Great Britain to Spain : its fate was uncertain in November, 1782, when the Provisional Articles were agreed on between Great Britain and the United States.
This separate article, extremely inconvenient in itself, and which must have proved particularly offensive to Spain, was acceded to with great reluctance by the American Commissioners, and, contrary to their instructions, kept secret from the French Government. The British Commissioner produced the commission of Governor Johnson, (z) extending the bounds of West Florida as above mentioned, and contended for that extent as a matter of right. And the principal reason which induced the American Commissioners to agree to it, is a complete answer to the pretended impossibility, suggested in the British Statement, that Great Britain ever could have acceded to the North-eastern Boundary as now claimed by the United States, In their letter to their Government, of July, 1783, they say : “Mr. Oswald adhered strongly to that object.
And among other arguments, he finally urged his being willing to yield to our demands to the East, North, and West, as a further reason for our gratifying him on the point in question.” (a)
The silence preserved, in the British Statement, with respect to Public Acts so well known, and so immediately connected with the question, and the suggestions concerning the North-west Angle of Nova Scotia, render it however proper to repeat in substance the decisive facts already adduced, which, independent of any other consideration, prove beyond doubt the identity of the boundary lines prescribed by the above mentioned acts, with those declared and agreed on by the treaty of 1783.
By the Commissions of all the Governors of Nova Scotia, from the year 1763 to that of the 29th July, 1782, issued to John Parr, who was the Governor at the date of the Provisional Articles of Peace, of November, 1782, and of the definitive treaty of September, 1783, that Province was declared, to be bounded on the Westward, “ by a line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth
(x) Written Evidence, No. 32.
(y) Written Evidence, No. 33.
(a) Written Evidence, No. 9. (a)