APPENDIX, No. LV. EXTRACTS FROM THE ARGUMENTS OF THE BRITISH AGENT UNDER THE 5TH ARTICLE OF THE TREATY OF GHENT. Appendix. No. 55. Arguments of the der the 5th article Ghent. "At Mars Hill there will be found a point of intersection of the north line with highlands fully answering the description in the treaty: there, it is conceived, is the Extracts from the point at which the north line ought to terminate; for these lands are not only unquesBritish Agent un- tionably the highest, but they are also the first that have been intersected by the north of the Treaty of line; and it would not only be unreasonable to pass over these to look for others, which, if found, would not so well answer the description, but would also be inconBritish Agent's First Memorial. sistent with the meaning of the words used in the treaty, viz: "North to the highlands;" which words are evidently to be undertood as intending that the north line should terminate whenever it reached the highlands which, in any part of their extent, divide the waters mentioned in the treaty." British Agent's Second Memorial. "And as the said Mars Hill appears to be connected by broken ridges of highland with the mountains, near the sources of the Penobscot, and the highest points of land to the Connecticut River will be found in continuation of the same direction, and will fully answer the description of the highlands contemplated in the treaty, it follows, that the point of highlands lying due north from the source of the River St. Croix, and designated in the said treaty of peace, of 1783, as the north-west angle of Nova Scotia, must be ascertained and determined to be at the point of the highlands at Mars Hill, the first and only highlands which is intersected by the said due north line, in conformity with the provisions, in this behalf, of the said treaty." "It is presumed that it will admit of no doubt that the true intention of that part of the treaty, now under consideration, was to secure to the United States the objects solely which are above specified in this regard; and that it was likewise the intention of this part of the treaty, to leave to his Majesty the undisputed and undisturbed right and possession of and to all parts of the adjoining territory not intended to be included within the boundaries of the United States. This intention will be literally effectuated by a very small variation of the expression actually made use of in this regard, namely, by describing the second line forming this angle in the following words, that is to say," along the said highlands where they divide those rivers that empty themselves into the River St. Lawrence from those that fall into the Atlantic Ocean." The expression actually made use of is, along the said highlands which divide the rivers, &c. For it is to be observed, that the north-west angle of Nova Scotia is distinctly defined before any mention is made of the circumstance of the highlands, which form a subsequent part of the boundary dividing the rivers mentioned, in that No. 55. Arguments of the der the 5th Article Ghent. regard, in the treaty. And this circumstance, of the highlands dividing rivers, is men- Appendix. tioned, not as constituting a part of the definition of the term, but merely as matter of description, with the view of securing to the United States the sources of the rivers Extracts from the which empty themselves within the boundaries, as before stated. The words de- British Agent unscriptive of the eastern boundary of the United States, are these: "East, by a line to of the Treaty of be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy, British Agent's to its source; and from its source, directly north, to the aforesaid highlands which di- Second Memorial. vide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence." These words, taken in their literal and individual signification, would involve a construction altogether inconsistent with other parts of the treaty, and with facts at the time within the knowledge of the framers of it; and if the foregoing observations upon the first description of this part of the boundary be, as they are presumed to be, correct, these words, descriptive of the eastern boundary, must, of necessity, be interpreted in a corresponding sense." "The framers of the treaty, of 1783, while they appear to have presumed from their knowledge of the highlands that divided the sources of the Kennebec from those of the Claudiere, that a continued range or ridge of highlands would be found in the same direction, extending from the due north line to the north-westernmost head of Connecticut River, yet they could not have been certain that this due north line would, in fact, precisely intersect these, or any other, highlands; and, in case of no such intersection, the north-west angle of Nova Scotia must, of necessity, to fulfil the intention of the treaty, be found at the point of the intersection of the due north line, by a prolongation of the line along these well known highlands, easterly, to such point of intersection." British Agent's "These highlands, thus intersected by the due north line, are found to lie in the general course and direction of the highlands "along" which the second line, forming the north-west angle of Nova Scotia, is described in the treaty to run, namely: "the highlands which divide those rivers which empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, to the termination of this line at the north-westernmost head of Connecticut River." Or, in other words, the highlands thus intersected by the due north line lie in the general course and direction of a line drawn from the north-westernmost head of Connecticut river, along the well known and very elevated and conspicuous HEIGHT OF LAND forming the acknowledged and notorious land-mark and boundary between the two nations, in that quarter which divides the River Chaudiere and du Loup, emptying themselves into the River St. Lawrence, from the Rivers Penobscot and Kennebec, falling into the Atlantic Ocean. This well known HEIGHT OF LAND being the only high land which actually divides the rivers contemplated in the treaty to be divided by the boundary line therein described, as the undersigned Agent has heretofore, in the course of these discussions, abundantly shewn; and this well known HEIGHT OF LAND being moreover found to extend north-easterly in a direction towards Mars Hill, in a distinct and unbroken ridge, for many miles, and to be afterwards connected with Mars Hill by a succession of mountains and broken ridges of highlands, intersected with ponds and streams, appearing to the eye, when viewed from various stations, to be an elevated and unbroken ridge, as the result of the surveys fully prove. No other point in this due north line, in any part of its extent, combines these various circumstances, exclusively of the other and fatal objections to adopting any point in this line, north of the River St. John, as the north-west angle of Nova Scotia. It seems, therefore, from these considerations, to result in demonstration, that the point where the said due Appendix. north line strikes the highlands at Mars Hill is the north-west angle of Nova Scotia truly intended in the treaty of peace of 1783. No. 5.5. Extracts from the der the 5th article Ghent. "The true intention of the treaty, then, under all the acknowledged facts in this case, British Agent un- would clearly be ascertained by the following obviously plain and natural and of the Treaty of nearly literal construction of its phraseology, namely: It is hereby agreed and declared that the following are, and shall be, the boundaries of the United States, 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 line of the highlands, along the said line and the highlands which divide," &c. British Agent's "The force of this reasoning will be rendered more apparent if the boundaries of the United States, described in the treaty, be traced from west to east, instead of from east to west, as they are traced in the treaty, merely for the purpose of a more convenient description of them; for, it will not be contended that the quarter in which one may commence the actual tracing of a boundary, previously agreed upon, can make any difference in the boundary itself. Let then the tracing of the boundary, in this quarter, be made FROM the north-westernmost head of Connecticut River ALONG the highlands which divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, to 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." "In this case the only difference is, that the second line forming the angle is placed first in order in the description-there is no difference in the line itself. But it is the course or inclination of this line which is to form the north west angle of Nova Scotia, at the point of its intersection with the due north line, drawn from the source of the St. Croix.' "The line along the highlands, forming one of the lines of the north-west angle of Nova Scotia, is expressly designated in the treaty, to be a line along the highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence, between (i. e. from) the north-west angle of Nova Scotia and (i. e. to) the north-westernmost head of Connecticut River." "He, therefore, determined carefully to abstain from any reference whatever to any documents, maps, or plans, respecting the ancient or former boundaries of the Province of Nova Scotia, or to any of the proceedings before the Commissioners under the 5th article of the treaty of 1794, or of those under the 4th article of the present treaty, although he had them all in his possession, because he evidently perceived that the merits of the business submitted to the consideration of this honorable Board, though they might have been incidentally alluded to, had never come directly under discussion on either of those former occasions; and, consequently, that any of the obiter dicta of the Commissioners or Agents of either Government, in matters not in judgment before them, nor submitted in any manner to their investigation, could not any more than the obiter dicta of Judges or Counsel in any judicial proceeding, ALIO INTUITER, in the courts of law, be cited as authorities in a cause in which the merits of those occasional illustrations should become the direct object for investigation. or decision; and it would obviously be most unreasonable if it were otherwise. This observation has been elicited by the reference made by the Agent of the United States, to some expressions made use of by the undersigned Agent, in illustration of his arguments before the Commissioners, under the 5th article of the treaty of 1794, Appendix. at a time when he had not in any degree examined, and was altogether a stranger to, Νο. 55. the particular merits and bearings of the present question, which, at that time, was Extracts from the not a subject of investigation: Which expressions, as thy were not entitled to, so it British Agent unis certain they never can have, any weight with the commissioners forming this en- of the Treaty of Arguments of the der the 5th article Gheut. lightened Board, who are sworn "impartially to examine and decide upon the pre- British Agent's sent claim, according to such evidence as shall be laid before them, on the part of his Britannic Majesty and of the United States, respectively." Observations upon the answer of U S. Agent. "And we here discover the accuracy and propriety of the peculiar phraseology, in the first description of the north-west angle of Nova Scotia, noticed in the 5th section of the second part of the opening argument of the undersigned, namely, that this angle is not in this description, designated to be that angle which is formed by a line drawn due north from the source of the River St. Croix to the highlands which divide those rivers which empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, but merely to the highlands. The framers of the treaty well knew, that this north line would never intersect any part of those only highlands contemplated in the treaty; therefore the second line is described to be along the said highlands, &c., and thus confirms the reasoning of the undersigned in the section of his argument above alluded to, and is strictly conformable to Mitchell's Map, in this regard. And as it had been, in the manner before mentioned, conceded, and it has been accordingly incontestably established, that the line along the highlands intended by the treaty, should and must be a line south of the River St. John, it results in demonstration, that the north-west angle of Nova Scotia, designated in the 2d article of the treaty of peace, of 1783, is formed by a protraction of this line from the said highlands easterly, along the highlands, of the description mentioned in the claim and opening argument of the Agent of the United States, following the sources of the several branches of the rivers, above mentioned, falling into the Atlantic Ocean, and leaving the same within the territories of the United States, until such line, so protracted, shall intersect a line drawn due north from the source of the river St. Croix; which point of intersection must, therefore, incontrovertibly be the north-west angle of Nova Scotia, required to be ascertained by this.honorable Board, under the 5th article of the treaty of Ghent, agreeably to the inferences, in this regard, made in the 15th section of the reply of the undersigned to the claim and opening arguments of the Agent of the United States, and in conformity with the provisions, in this regard, of the 2d article of the treaty of peace, of 1783." APPENDIX, No. LVI. EXTRACTS FROM THE REPORTS OF THE SURVEYORS UNDER THE FIFTH ARTICLE OF THE TREATY OF GHENT. From the "Appendix to the Proceedings of the Commissioners." TABLE OF CONTENTS. (a) Joseph Bouchette, H. B. M. Surveyor, 1817; due North Line; Surveys Nos. 2 and 27. (b) John Johnson, U. S. Surveyor, 1817; due North Line; Surveys No. 1. (c) W. F. Odell, H. B. M. Surveyor, 1818; due North Line; Surveys No. 4. (g) John Johnson, U. S. Surveyor, 1818; due North Line; Observations from Mars-hill; Temiscouta Portage; View from Green Mountain; Surveys No. 3. (i) W. F. Odell, H. B. M. Surveyor, 1819; Ristook River; Views from Mars-hill and Park's-place; Surveys No. 7. (k) Colin Campbell, H. B. M. Surveyor, 1819, 1820; Mount Kathadin; Acknowledged highlands; East Ridge; Sources of Penobscot; Views thence; Surveys No. 18. (1) Alden Partridge, U. S. Surveyor, 1819; Temiscouta Portage; Mars-hill; Acknowledged highlands; Altitudes; Surveys Nos. 5, 6. (4, No. 4.) W. G. Hunter, U. S. Surveyor, 1819; Umbasucksus Portage; Source of Penobscot; Surveys Nos. 8, 9, 10. (m) W. F. Odell, H. B. M. Surveyor, 1820; Sources of Penobscot; Views from various places. (0) J. L. Tiarks, H. B. M. Surveyor, 1820; Green River and Tuladi Portages; Surveys No. 15. (8) T. Carlile, H. B. M. Surveyor, 1820; Ouelle and Metjarmette Portages; Surveys Nos. 24, 26. (x) W. G. Hunter. U. S. Surveyor, 1820; West Branch and Portage of South Branch of St. John; Surveys No. 19. (p) Charles Loss, H. B. M. Surveyor, 1820; West Branch and Portage of South Branch of St. John; Surveys No. 20. (y) N. H. Loring, U. S. Surveyor, 1820; Mount Kathadin and Umbasucksus Portage; Surveys Nos. 16, 17. (9) T. Carlile, H. B. M. Surveyor, 1820; Highlands acknowledged by both Parties; Sources of Connecticut River; Surveys No. 22. (7) J. L. Tiarks, H. B. M. Surveyor, 1820; Sources of Connecticut River; Surveys No. 12. Appendix. Reports of the Sur "On the 30th we again proceeded on the line, with twenty days' provisions, from No. 56. the River St. John; after having ascended its banks, and until we reached the 91st Extracts from the mile, the ascents and descents were not materially conspicuous, but we went over veyors under the several pine ridges and through several swamps, from the 91st mile the land generally Treaty of Ghent. ascended until we intersected a large stream, which we at first took to be the Grand (a) River, but proved afterwards to be the River which empties itself close to the Great Surveyor. North Falls on the River St. John; from that River the land generally ascends to the Restigouche Portage, which we intersected at 97 miles 32 chains and 80 links: this por 5th article of the Jos. Bouchette, Line. Surveys Nos. 2 and 27. |