tentions. mination of the due North line, along the highlands which divide certain specified rivers, to the source of the Connecticut River; those ministers should have omitted altogether to mention, include, or allude, in any manner, to that river which formed the most conspicuous feature of the country, through or along which that boundary line must pass. For, in the description of that boundary, as defined by the treaty, no other rivers are mentioned, or alluded to, but those which empty themselves into the River St. Lawrence, and those which fall into the Atlantic Ocean. The framers of the treaty were informed by Mitchell's Map, that the River St. John did not empty itself into the River St. Lawrence; and, according to the British hypothesis, it is not in the treaty, and it was not intended by the negotiators, as one of those included under the description of "Rivers that fall into the Atlantic Ocean." But it is asserted by Great Britain, that it was the intention of the parties to the treaty of 1783, that the point designated in it, as the North-west angle of Nova Scotia; that is to say, the point at which the line drawn due North from the source of the River St. Croix meets the intended highlands and terminates, should be found to the South of the River St. John. And it was manifest by Mitchell's Map, and therefore perfectly well known to the negotiators, that no point or part of the due North line aforesaid, South of the River St. John, did or could divide, from each other, any rivers whatever, but some branches of the said River St. John. It is, therefore, contended, on the part of Great Britain, that, intending to designate, as the North-west angle of Nova Scotia, and as the termination of the due North line which forms the Eastern boundary of the United States, some point known to them to divide, from each other, no other rivers than some branches of a river, which falls neither into the River St. Lawrence, nor (according to the hypothesis,) into the Atlantic Ocean; the framers of the treaty did deliberately describe that Eastern boundary, as a line drawn from the source of the River St. Croix, "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 defining the termination of that line, or North-west angle of Nova Scotia, by a designation known to them not to apply to the point which they intended to define. It is again asserted by Great Britain, that the highlands which actually divide the rivers specified by the treaty, and which alone were contemplated as such by the negotiators, are only those which, from the North-westernmost source of the Penobscot, to the North-westernmost source of the Connecticut River, divide the Rivers Penobscot, Kennebec, and Androscoggin, from the Rivers Chaudiere and St. Francis, which empty themselves into the St. Lawrence; and that the boundary line, intended and described by the treaty, does, from the abovementioned point South of the River St. John, on the due North line, extend South of the said river, along the heads of the River Penobscot, to its North-westernmost source, as it is delineated on the Map A. But it was manifest by Mitchell's Map, and therefore perfectly well known to the negotiators, that the nearest source of the River Chaudiere, was about 120 miles distant, in a straight line, and in a nearly Westerly course, from any point of the due North line; that, through that whole extent, the line would not divide, from any other river whatever, any river that empties itself into the River St. Lawrence; and that it could. not, through that whole extent, divide any other rivers from each other, but the Penobscot and the Kennebec from the tributary streams of the River St. John; that is to say, rivers falling into the Atlantic Ocean, from a river falling (according to the hypothesis) into the Bay of Fundy. It is, therefore, contended on the part of Great Britain, that, intending to designate as the boundary line, from the North-west angle of Nova Scotia to the North-westernmost head of Connecticut River, a line which, passing South of the River St. John, was known to them to divide, for three-fifths of its extent, no other rivers from each Intentions, other, than rivers falling into the Atlantic Ocean, from a river falling into the Bay of Fundy; and knowing that the said boundary line would not, at a shorter distance than 120 miles from its commencement, reach the highlands which actually divide the rivers that fall into the Atlantic Ocean from those which empty themselves intothe River St. Lawrence; the framers of the treaty, intending also, as expressly stated, that their description of the boundaries should be such as that all disputes which might arise in future on the subject of the same, might be prevented; did deliberately, and after mucli contention on the subject, ultimately agree to define the boundary thus intended to be established, in the following words, viz: "From the North-west angle of Nova Scotia, viz: that angle which is formed by a line drawn due North from the source of St. Croix River to the highlands, along the said highlands which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the North-westernmost head of Connecticut River." That is to say, that, in defining the boundary in question, those ministers described a line which, to their knowledge, divided, for three-fifths of its extent, rivers falling into the Atlantic Ocean from a river falling into the Bay of Fundy, as a line dividing rivers falling into the Atlantic Ocean from rivers emptying themselves into the River St. Lawrence; thus adopting a description which, to their knowledge, was applicable only to 80 miles out of the 200, along which the said boundary does, and was known by them to extend; and which, to their knowledge, was entirely inapplicable to the 120 miles next to the place of beginning, or to three-fifths of the whole length of that boundary. This incredible misapplication of language, or indeed gross absurdity, is ascribed to eminent and practical statesmen, some of them not less remarkable for the precision and perspicuity of their style, than for the clearness of their conceptions; and in a case where the description, being corrected in relation to the River Connecticut, affords an incontestable proof of the strict attention they paid to the terms used in describing that part of the boundary. What renders the supposition, that those ministers expressed themselves in terms so contradictory of the intentions gratuitously ascribed to them, still more outrageous, is, that there would not have been the slightest difficulty, with Mitchell's Map before them, in defining with the utmost precision, if so intended, the boundary line as now contended for by Great Britain. Had the intention been, as is affirmed, to assign to Great Britain the whole of the basin of the River St. John, there would not have been any occasion, either to refer to the North-west angle of Nova Scotia, or that any part of the boundary should have been a line drawn due North from the source of the River St. Croix. In that case, the boundary would, by any ordinary conveyancer in possession of Mitchell's Map, and of the intentions of the parties, have been described in the following words, or in other as explicit, and of the same import, viz: From the source of the River St. Croix, along the Highlands which divide the rivers that empty themselves either into the River St. John, or into the River St. Lawrence, from those which fall into the Atlantic Ocean, West of the mouth of the River St. Croix, to the North-westernmast head of Connecticut River, East by a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy to its source. Had it been intended, though for what object, with the intentions ascribed to the negotiators, (m) is altogether unintelligible, that a due North line drawn from the source (m) Particularly if they had in view that height of land of Governor Pownall in which the River Passamaquada has its source. X Intentions. of the River St. Croix, should form a part of the boundary, a slight alteration in the phraseology would, with equal facility, have effected that purpose. There would have been no more difficulty in thus describing the boundary, from Mitchell's Map, than the British Agent under the late commission found in delineating it on that very map. (n) All the arguments which have been adduced on the part of the United States, in opposition to the British line, are equally applicable to any other boundary that may be suggested, other than that claimed by them. Here too, since it is manifest by Mitchell's Map, and since therefore it was known to the framers of the treaty that it was impossible, that any boundary line whatever, extending Westwardly from any point whatever of the line drawn due North from the source of the River St. Croix, should divide rivers falling into the River St. Lawrence from rivers falling into the Atlantic Ocean, unless the River St. John was included amongst these; it necessarily follows, that it is impossible that those ministers should not have held the River St. John to be one of the rivers falling into the Atlantic Ocean, which they intended to be divided by the boundary, from those which empty themselves into the River St. Lawrence. In which case, it is also manifest by Mitchell's Map, that they could not have intended any other point on the due North line, as the North-west angle of Nova Scotia, than the intersection of the said line with that dividing ground, in which, according to the map, the rivers which fall into the River St. Lawrence have their sources; and therefore, that no other highlands could have been intended by the framers of the treaty, as the boundary between the dominions of the two Powers, than those which are claimed, as such, by the United States. North-westernmost head of Con mectient River. II. North-westernmost head of Connecticut River. The United States claim, as the North-westernmost head of Connecticut River intended by the treaty, that source which lies North-west of ny other source of any of the branches of the river, without regard to the specific names, or respective magnitude of those branches. The designation of "North-westernmost head" necessarily implies a selection between two or more sources. And the words "head of Connecticut River," and "thence down along the middle of that river," necessarily mean," head of and along the middle of the branch of that river," the source of which would be declared to be the North-westernmost head of Connecticut River. The designation was correct, since, guided by Mitchell's Map, the framers of the treaty must have considered any of its nameless upper branches, as equally entitled to the appellation of Connecticut River. And it has already been observed, that the principle is admitted by Great Britain, since she claims as the North-westernmost head intended by the treaty, the source of a nameless rivulet, along the middle of which, from its source to its junction with the other waters of the river, the boundary is claimed to extend, although it is not pretended that the rivulet is known by the name of Connecticut River. But Great Britain makes two exceptions to the principle; and maintains, 1st. That the North-westernmost head intended by the treaty must be the head of a branch, that unites with the other waters of the River Connecticut, above the highest point where it assumes the distinguishing title of Connecticut, or Main Connecticut; and 2dly. that (n) Topographical Evidence-Surveys-See the two several extracts from Mitchell's Map, presented by the British Agent, No. 29, American, and K. British. most head of Con Hall's Stream must also be excluded, on account of its uniting itself with the main river, North-westernat a point below the place which was, at the date of the treaty, considered as the inter- necticut River. section of the said main river, and of the 45th degree of north latitude. Even admitting all the facts assumed by Great Britain, there does not appear to be any solid reason for those exceptions. The term "North-westernmost" necessarily implies a selection between at least the respective sources of two distinct branches. One of these might have received the exclusive designation of "Main Connecticut;" and the source of the other branch, if found to be the North-westernmost of the two, must necessarily have been declared to be that intended by the treaty. In that case, the boundary declared to be from that head along the middle of the river, would have extended along the middle of a branch that united with the other below the highest point, where this was known by the distinguishing title of "Main Connecticut." And since the word "river," clearly means there, as admitted by Great Britain, a certain branch of the river, it is not perceived on what ground it is pretended that the boundary line cannot extend along that branch to the 45th degree of north latitude. With respect to the last objection, it will only be added, that if the boundary from Connecticut River, to the River St. Lawrence, shall be determined to be along the 45th parallel of North latitude, as ascertained by the late observations, Hall's Stream will be found to unite itself with the main river above, and not below the intersection of that parallel with the river; and that it will then, in that respect, be free of any objection. The obvious meaning of the word "river," as used in that clause of the treaty, sufficiently refutes the assertion, "that no stream which joins the Connecticut River, below any point where the river is known by that distinctive appellation, can with any propriety, or consistently with geographical practice, be assumed to be the River Connecticut." But it is proper to observe that the geographical practice alluded to, is not that which prevails in America. In Europe, every tributary stream, or branch, of every river, has been for ages almost universally known by a distinctive name. It is admitted that, although every source of any such branch is in fact one of the sources of that portion of the main river which flows below the mouth of such branch, the sources of a tributary stream, which is known by a distinct name, would not, in common language, be considered as the sources of the main river. It would be improper to designate the sources of the Marne, by the name of " Northern sources of the Seine." And if the framers of the treaty had defined a boundary in Europe, they would undoubtedly, in reference to the branch or source of any river, have used, instead of such an expression as "North-westernmost head," the specific and distinctive name by which the branch was known. But, in America, the upper branches of a river, when they are first discovered and explored, are most commonly distinguished from each other, only by appellations indicative of their course; neither of them being exclusively designated as the main. river. Of this, numerous instances may be given, even in relation to rivers of considerable magnitude, such as the West Branch of Susquehanna, the North Branch, and the South Branch of the Potomac, &c. all of which are to this day known by no other names. (nn) The reports of the Surveyors under the late commission, and the Map A, afford also several instances, with respect to branches which had till then been unexplored; such as the North-west, the West, and the South-west branches of the St. John, and the East, the West, and the North-west branches of the Penobscot, neither branch of which last River is called the "Main Penobscot." (nn) Pownall, pages 36 and 38. North-western most head of Con necticut River. It may be confidently asserted, that, so far at least as relates to the yet uninhabited parts of the country, and the geography of which is but imperfectly known, the words "sources" and "heads," as applied to the upper waters of a river, are, in America, universally understood to embrace the sources of all its branches. Thus, in a passage already quoted from Governor Pownall's Topographical Description; "All the Heads of Kenebaëg, Penobskaëg, and Passam-aquâda River, are on the Height of the Land running East-north-east;" the sources of all the tributary streams of the Penobscot and of the other rivers therein mentioned, are evidently included under the denomination of "All the Heads," &c. The preceding observations may be illustrated by a supposed case, taken from Map A. It has already been observed, that the various upper branches of the River St. John, have no other distinctive names but those of West, North-west, South-west branch, &c. whilst one of them is exclusively distinguished by the name of "South or Main Branch of the River St. John," and, in some of the Reports of the Surveyors, is called the "Main St. John." (0) Supposing that the State of Maine should divide the territory on the River St. John, into two districts, and should define the boundary, as "beginning at the Southwesternmost source of the River St. John, thence down along the middle of that River, to 46° 25' of North latitude, thence along the said parallel of latitude," &c. is it not clear that, although the South-west unites with the South Branch of the river, below the point where this is known by the name of Main St. John, and below the point where it is intersected by the parallel of latitude above mentioned, the Southwesternmost head would nevertheless be understood to mean, the source of the Southwest Branch, at the point marked L, on the American Transcript of Map A? In all the preceding observations, the facts assumed on the part of Great Britain have been taken for granted. Her claim rests on the double assertion, that the Lake branch of the Connecticut River was, at the date of the treaty of 1783, known by the distinctive name of "Main Connecticut;" and that this fact was known to the framers of the Treaty. These are questions of fact at issue: the United States are not bound to prove a negative; the burden of the proof falls exclusively on Great Britain; and the evidence which has been produced, so far from sustaining the assertions, proves the reverse. The grant to Dartmouth College, by the State of New Hampshire, would only prove, that the distinctive appellation contended for was in use in the year 1789, or about six years after the treaty. The only other evidence adduced on the part of Great Britain, is contained in the report of Dr. Tiarks, and although hearsay, ex-parte, and not taken on oath, will nevertheless be admitted to its full extent, but not beyond that extent. Mr. Tiarks was informed by all the persons that he had an opportunity of consulting, that the river into which Indian Stream discharges itself, (the Lake branch,) is commonly called Connecticut River, or sometimes the Main Connecticut River, to distinguish it from the other smaller streams, which have all particular well known names; and that this river (the Lake branch) is never designated by the inhabitants, by the name of the Eastern branch of the Connecticut River, or distinguished by any name but those stated above. Mr. Tiarks collected that information in the month of October, 1820; and he refers particularly to Jeremiah Eames, Captain Eames, and John Hughs, inhabitants of New Hampshire, who, as he says, have known that river and hunted on it more than thirty years ago, and always lived in the vicinity. (p) (0) C. Campbell's and F. Odell's Reports. British Evidence, No. 10, pages 94 and 114. |