The highlands of the treaty of 1783 are described as those "which divide
those rivers that empty themselves into the river St. Lawrence from
those which fall into the Atlantic Ocean." It has been uniformly and
consistently maintained on the part of the United States that by the
term "highlands" was intended what is in another form of the same words
called the height of land. The line of highlands in this sense was to be
sought by following the rivers described in the treaty to their source
and drawing lines between these sources in such manner as to divide the
surface waters. It was believed that the sources of such rivers as the
Connecticut and the St. John must lie in a country sufficiently elevated
to be entitled to the epithet of highlands, although it should appear on
reaching it that it had the appearance of a plain. Nay, it was even
concluded, although, as now appears, incorrectly--and it was not feared
that the conclusion would weaken the American argument--that the line
from the northwest angle of Nova Scotia, at least as far as the sources
of Tuladi, did pass through a country of that description. Opposite
ground was taken in the argument of Great Britain by her agent, but
however acute and ingenious were the processes of reasoning by which
this argument was supported, it remained in his hands without
application, for the line claimed by him on the part of his Government
was one having the same physical basis for its delineation as that
claimed by the agent of the United States, namely, one joining the
culminating points of the valleys in which streams running in opposite
directions took their rise. The argument appears to have been drawn
while he hoped to be able to include Katahdin and the other great
mountains in that neighborhood in his claimed boundary, and he does not
appear to have become aware how inapplicable it was in every sense to
the line by which he was, for want of a better, compelled to abide.
The British Government, however, virtually abandoned the construction
of their agent in the convention signed in London the 27th September,
1827.[55]
[Footnote 55: See Note IX, p. 148.]
In this it was stipulated that Mitchell's and Map A should be admitted
to the exclusion of all others "as the only maps that shall be
considered as evidence" of the topography of the country, and in the
latter of these maps, constructed under the joint direction of the
British and American negotiators by the astronomer of the British
Government, it was agreed that nothing but the water courses should
be represented. Finally, it was admitted in the report of Messrs.
Featherstonhaugh and Mudge that the terms highlands and height of land
are identical. The decision of the King of the Netherlands, to which
Great Britain gave her assent in the first instance, recognizes the
correctness of the views entertained in the American statements.[56]
All discussion on this subject is, however, rendered unnecessary by the
knowledge which the undersigned have obtained of the country. The line
surveyed by them not only divides rivers, but possesses in a preeminent
degree the character by which in the British argument highlands are
required to be distinguished.
[Footnote 56: See Note X, pp. 148, 149.]
It is sufficient for the present argument that the identity of the
lines pointed out by the proclamation of 1763 and the act of 1774 with
the boundary of the treaty of 1783 be admitted. Such has been the
uniform claim of the Government of the United States and the State
of Massachusetts, and such is the deliberate verdict of the British
commissioners.[57] The words of the proclamation of 1763 have already
been cited. By reference to them it will be seen that the origin of "the
highlands" is to be sought on the _north_ shore of the Bay of Chaleurs.
If they are not to be found there, a gap exists in the boundary of the
proclamation, which it is evident could not have been intended. It has
been thought by some that the gap did actually exist, but this idea was
founded on an imperfect knowledge of the country. The Bay of Chaleurs
seems, in fact, to have been better known to the framers of the
proclamation of 1763 and the act of 1774 than to any subsequent
authorities, whether British or American. Researches made in the year
1840 show that at the head of the tide of the Bay of Chaleurs a mountain
rises immediately on the northern bank, which from its imposing
appearance has been called by the Scotch settlers at its foot Ben
Lomond. This, indeed, has by measurement been found to be no more than
1,024 feet in height, but no one can deny its title to the name of a
highland. From this a continuous chain of heights has been ascertained
to exist, bounding in the first instance the valley of the Matapediac
to the sources of that stream, which they separate from those of the
Metis. The height of land then passes between the waters of Metis and
Restigouche, and, bending around the sources of the latter to the
sources of the Rimouski, begins there to separate waters which fall into
the St. Lawrence from those which fall into the St. John, which they
continue to do as far as the point where they merge in the line admitted
by both parties.
[Footnote 57: Report of Featherstonhaugh and Mudge, pp. 6, 23.]
These highlands have all the characteristics necessary to constitute
them the highlands of the treaty. Throughout their whole northern
and western slopes flow streams which empty themselves into the St.
Lawrence. Beginning at the Bay of Chaleurs, they in the first place
divide, as it is necessary they should, waters which fall into that
bay; they next separate the waters of Restigouche from those of Metis;
they then make a great detour to the south and inclose the valley
of Rimouski, separating its waters from those of Matapediac and
Restigouche, the Green River of St. John and Tuladi; they next perform a
circuit around Lake Temiscouata, separating its basin from those of the
Otty and Trois Pistoles, until they reach the Temiscouata portage at
Mount Paradis. This portage they cross five times, and finally, bending
backward to the north, inclose the stream of the St. Francis, whose
waters they divide from those of Trois Pistoles, Du Loup, and the Green
River of the St. Lawrence. Leaving the Temiscouata portage at the
sixteenth milepost, a region positively mountainous is entered, which
character continues to the sources of the Etchemin. It there assumes for
a short space the character of a rolling country, no point in which,
however, is less than 1,200 feet above the level of the sea. It speedily
resumes a mountainous character, which continues unaltered to the
sources of the Connecticut.
Now it is maintained that all the streams and waters which have been
named as flowing from the southern and eastern sides of this line are in
the intended sense of the treaty of 1783 rivers which empty themselves
into the Atlantic. The first argument adduced in support of this
position is that the framers of that treaty, having, as is admitted,
Mitchell's map before them, speak only of two classes of rivers--those
which discharge themselves into the St. Lawrence River and those which
fall into the Atlantic Ocean; yet upon this map were distinctly seen the
St. John and the Restigouche. The latter, indeed, figures twice--once
as a tributary to the Bay of Miramichi and once as flowing to the Bay
of Chaleurs.[58] It can not reasonably be pretended that men honestly
engaged in framing an article to prevent "all disputes which might arise
in future" should have intentionally passed over and left undefined
these important rivers, when by the simplest phraseology they might have
described them had they believed that in any future time a question
could have arisen whether they were included in one or the other of the
two classes of rivers they named. Had it been intended that the due
north line should have stopped short of the St. John, the highlands
must have been described as those which divide rivers which fall into
the St. Lawrence _and the St. John_ from those which fall into the
Atlantic Ocean. The mouth of the St. Lawrence had been defined in the
proclamation of 1763 by a line drawn from the river St. John (on the
Labrador coast) to Cape Rozier. If, then, it had been intended that the
meridian line should not have crossed the Restigouche, the phraseology
must have been highlands which divide rivers which fall into the river
_and_ Gulf of St. Lawrence from those which fall into the Atlantic
Ocean. Where such obvious modes of expressing either of these intentions
existed, it is not to be believed that they would have been omitted;
but had they been proposed to be introduced the American negotiators
would have been compelled by their instructions to refuse them. Such
expressions would have prescribed a boundary different not only in
fact, but in terms, from that of the proclamation of 1763 and the
contemporaneous commission to Governor Wilmot. Either, then, the British
plenipotentiaries admitted the American claim to its utmost extent or
they fraudulently assented to terms with the intention of founding upon
them a claim to territory which if they had openly asked for must have
been denied them. The character of the British ministry under whose
directions that treaty was made forbids the belief of the latter having
been intended. The members of that ministry had been when in opposition
the constant advocates of an accommodation with the colonies or of an
honorable peace after all hopes of retaining them in their allegiance
had ceased. They showed on coming into power a laudable anxiety to put
an end to the profitless effusion of human blood, and they wisely saw
that it would be of more profit to their country to convert the new
nation into friends by the free grant of terms which sooner or later
must have been yielded than to widen the breach of kindred ties by an
irritating delay. The debates which ensued in the British Parliament
when the terms of the treaty were made known show the view which the
party that had conducted the war entertained of this question. The
giving up of the very territory now in dispute was one of the charges
made by them against their successors, and that it had been given up by
the treaty was not denied. Nay, the effect of this admission was such
as to leave the administration in a minority in the House of Commons,
and thus became at least one of the causes of the resignation of the
ministry[59] by which the treaty had been made. At this very moment more
maps than one were published in London which exhibit the construction
then put upon the treaty by the British public. The boundary exhibited
upon these maps is identical with that which the United States now claim
and have always claimed.
[Footnote 58: See Note XI, p. 149.]
[Footnote 59: Hansard's Parliamentary Register for 1783.]
The full avowal that the boundary of the treaty of 1783 and of the
proclamation of 1763 and act of 1774 are identical greatly simplifies
the second argument. It has been heretofore maintained on the part of
Great Britain that the word "sea" of the two latter-named instruments
was not changed in the first to "Atlantic Ocean" without an obvious
meaning. All discussion on this point is obviated by the admission.
But it is still maintained that the Bay of Fundy is not a part of the
Atlantic Ocean because it happens to be named in reference to the St.
Croix in the same article of the treaty. To show the extent to which
such an argument, founded on a mere verbal quibble, may be carried, let
it be supposed that at some future period two nations on the continent
of North America shall agree on a boundary in the following terms: By a
line drawn through the Mississippi from its mouth in the Gulf of Mexico
to its source; thence a parallel of latitude until it meet the highlands
which divide the waters that empty themselves into the Pacific Ocean
from those which fall into the Atlantic. Could it be pretended that
because the mouth of the Mississippi is said to be in the Gulf of
Mexico the boundary must be transferred from the Rocky Mountains to
the Alleghanies? Yet this would be as reasonable as the pretensions
so long set up by the British agents and commissioners.
It can not be denied that the line claimed by the United States fulfills
at least one of the conditions. The streams which flow from one side of
it fall without exception into the river St. Lawrence. The adverse line
claimed by Great Britain in the reference to the King of the Netherlands
divides until within a few miles of Mars Hill waters which fall into the
St. John from those of the Penobscot and Kennebec. The latter do not
discharge their waters directly into the ocean, but Sagadahock and
Penobscot bays intervene, and the former falls into the Bay of Fundy;
hence, according to the argument in respect to the Bay of Fundy, this
line fulfills neither condition.
The line of Messrs. Featherstonhaugh and Mudge is even less in
conformity to the terms of the treaty. In order to find mountains
to form a part of it they are compelled to go south of the source of
branches of the Penobscot; thence from mountains long well known, at
the sources of the Alleguash, well laid down on the rejected map of
Mr. Johnson, it becomes entangled in the stream of the Aroostook, which
it crosses more than once. In neither part does it divide waters at all.
It then, as if to make its discrepancy with the line defined in the
proclamation of 1763 apparent, crosses the St. John and extends to the
_south_ shore of the Bay of Chaleurs, although that instrument fixes the
boundary of the Province of Quebec on the north shore of the bay. In
this part of its course it divides waters which fall into the said bay
from those which fall into the St. John. But the proclamation with whose
terms this line is said to be identical directs that the highlands shall
divide waters which fall into the St. Lawrence from those which fall
into the sea. If the branches of the Bay of Chaleurs fulfill the first
condition, which, however, is denied, the St. John must fulfill the
latter. It therefore falls into the Atlantic Ocean, and as the identity
of the boundary of the treaty with that of the proclamation of 1763 and
act of 1774 is admitted, then is the St. John an Atlantic river, and the
line claimed by the United States fulfills both conditions, and is the
only line to the west of the meridian of the St. Croix which can
possibly do so.
The choice of a line different from that presented to the choice of the
King of the Netherlands is no new instance of the uncertainty which has
affected all the forms in which Great Britain has urged her claim.
In fact, nothing shows more conclusively the weakness of the ground on
which the British claim rests than the continual changes which it has
been necessary to make in order to found any feasible argument upon
it.[60] In the discussion of 1798 it was maintained on the part of Great
Britain that the meridian line must cross the St. John River; in the
argument before the commissioners under the fifth article of the treaty
of Ghent it was denied that it ever could have been the intention of the
framers of the treaty of 1783 that it should. Yet the mouthpiece by
which both arguments were delivered was one and the same person. The
same agent chose as the termination of what he attempted to represent
as a continuous range of hills an isolated mountain, Mars Hill; and
the commissioners whose report is under consideration place a range of
abraded highlands, "the maximum axis of elevation," in a region over
which British engineers have proposed to carry a railroad as the most
level and lowest line which exists between St. Andrews and Quebec.[61]
[Footnote 60: See Note XII, p. 149.]
[Footnote 61: Prospectus of St. Andrews and Quebec Railroad, 1836; and
Survey of Captain Yule, 1835.]
On the other hand, the American claim, based on the only practicable
interpretation of the treaty of 1783, has been consistent throughout:
"Let the meridian line be extended until it meets the southern boundary
of the Province of Quebec, as defined by the proclamation of 1763 and
the act of Parliament of 1774."
No argument can be drawn against the American claim from the secret
instructions of Congress dated August, 1779. All that is shown by
these instructions is the willingness to accept a more convenient
boundary--one defined by a great natural feature, and which would have
rendered the difficult operation of tracing the line of highlands and
that of determining the meridian of the St. Croix by astronomic methods
unnecessary. The words of the instructions are:
"And east by a line to be drawn along the middle of the St. John from
its source to its mouth in the Bay of Fundy, _or_ by a line to be
settled and adjusted between that part of the State of Massachusetts Bay
formerly called the Province of Maine and the colony of Nova Scotia,
agreeably to their respective rights, comprehending all islands within
20 leagues of the shores of the United States and lying between lines to
be drawn due east from the points where the aforesaid boundaries between
Nova Scotia on the one part and East Florida on the other part shall
respectively touch the Bay of Fundy and the Atlantic Ocean."
The proposal in the first alternative was to appearance a perfectly fair
one. From an estimate made by Dr. Tiarks, the astronomer of Great
Britain under the fifth article of the treaty of Ghent, in conformity
with directions from Colonel Barclay, the British commissioner, it was
ascertained that the whole disputed territory contained 10,705 square
miles; that the territory bounded by the St. John to its mouth contained
707 square miles less, or 9,998 square miles. The difference at the time
was probably believed to be insensible. The first alternative was,
however, rejected by Great Britain, and obviously on grounds connected
with a difference in supposed advantage between the two propositions.
The American commissioners were satisfied that they could urge no legal
claim along the coast beyond the river St. Croix; they therefore treated
on the other alternative in their instructions--the admitted limits
between Massachusetts and Nova Scotia. Even in the former alternative,
Nova Scotia would still have had a northwest angle, for the very use of
the term shows that by the St. John its northwestern and not the
southwestern branch was intended.
At that moment, when the interior of the country was unknown, the
adoption of the St. John as the boundary, even admitting that the
Walloostook, its southwestern branch, is the main stream, would have
given to the United States a territory of more immediate value than
that they now claim. For this very reason the proposition was instantly
rejected by Great Britain, and the State of Massachusetts was forced
to be contented with the distant region now in debate--a region then
believed to be almost inaccessible and hardly fit for human habitation.
Even now, were there not vested private rights on both sides which might
render such a plan difficult of application, the undersigned would not
hesitate to recommend that this line should be accepted in lieu of the
one which is claimed under the treaty of 1783.
It is finally obvious, from the most cursory inspection of any of the
maps of the territory in question, that the line claimed for Great
Britain in the argument before the King of the Netherlands fulfills
no more than one of the two conditions, while that of Messrs.
Featherstonhaugh and Mudge fulfills neither; and as the line claimed on
the part of the United States is denied to be capable of meeting the
terms of the treaty of 1783 by Great Britain, there is no line that,
in conformity with the British argument, can be drawn within the
disputed territory or its vicinity that will comply with either of
the conditions. This is as well and as distinctly shown in the map of
Mitchell as in the map of the British commission. It would therefore
appear, if, these views be correct, that the framers of the treaty
of 1783 went through the solemn farce of binding their respective
Governments to a boundary which they well knew did not and could not
exist.