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River St John with those notions, the line of the St. John River was proposed as, throughout der the Trea- its whole course, confining the Province of Massachusetts Bay.

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Appendix,

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In addition to Mr. Adams's evidence above detailed, Mr. Jay declared on oath, in the same manner, that "in the course of the negotiations, difficulties arose respecting the eastern extent of the United States. That Mitchell's map was before them, and was frequently consulted for geographical information." Further, Mr. Jay declared, "that he doubted there having then been very "clear conceptions relative to the just and precise eastern extent of Massachusetts, "for he had reason to believe, that respectable opinions in America at that "time (1782) considered the River St. John as the proper eastern limit of "the United States."

In recapitulation, then, the sum total of all the preceding evidence is, that the whole course of the River St. John was first proposed by the United States as their eastern limit; that that limit not having been obtained, the contingent proposition authorised by the American Instructions above-cited, namely, that for the settlement of boundaries after the war, was resorted to; that that also failed; in fact, that the whole original projet of the article respecting the eastern and northern Boundary of the United States was fundamentally changed. Hence, we can come but to one conclusion, and that is, that a new and more contracted line was substituted for the line so rejected and altered.

But it may be asserted that the new line may not necessarily have been a more contracted line than the old; but that in return for the partial contraction of the line at first claimed by the Americans, in the substitution of the St. Croix River for the lower part of the St. John, Great Britain may have agreed to give up to the United States all the lands to the north of the St. John, to which they now lay claim.

This would be equivalent to saying, that Great Britain, having vehemently contested the whole Line of Boundary proposed by the United States, from the source to the mouth of the St. John, and having moreover herself gradually receded from her original claims to the Piscataqua, Kennebec, and Penobscot, gave up to the United States as an appropriate result of that contest, and those concessions, the entire upper half of that great and important river, together with 700 No. 9, p. 47. square miles* of territory to the north of it, beyond the utmost extent of territory demanded in the first instance by the United States to the south of that river, and negatived by Great Britain; and, as if this was but an insufficient equivalent, that she consented to place the United States in entire possession of the only practicable line of communication between her two Provinces of Canada and Nova Scotia: and all this in the face of the preamble contained in the very Treaty by which these arrangements are sanctioned, which preamble, as we have seen, expressly declares, that these arrangements are made in order to prevent future disputes.

Such an assertion would carry its own refutation. Besides, not a word of evidence can be adduced in support of it. For in the whole of the evidence above-cited, we have seen that no claim was ever, from first to last, advanced, on the part of the United States, either in virtue of their adherence to the charter of Massachusetts Bay, or on any other ground, to any territory to the north of the St.John. And from the account above given of the proceedings relative to the Treaty, as well in, as out of Congress, it is clearly deducible, that not a thought was ever seriously entertained, on the part of the United States, of claiming such extension of Boundary.

Every thing that we have seen, relative to the Negotiations in 1782, tends, in fact, to one irresistible conclusion, which is, that the United States, in the first

*Calculation by Dr. Tiarks of the comparative loss which would accrue to Great Britain by the adoption of the Line of Boundary now claimed by the United States, in lieu of that originally proposed by them in 1782.

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instance, laid claim to a Boundary, which they afterwards found that they could River St. John not support; and as Great Britain positively refused to accede to it, they were der the Treacompelled to contract it to a line within that originally claimed; namely, to the ties from the St. Croix, on the extreme east; and westward, along a continuation of the Rivers. same highlands which, in the original projet, were taken to divide the Kennebec and the Penobscot from the rivers falling into the St. Lawrence.

In reference then to the two essential points which we have above discussed, namely, whether the Bay of Fundy is contradistinguished under the Treaty from the Atlantic Ocean; and whether the River St. John is excepted from that class of rivers which are described in the Treaty as falling into the Atlantic Ocean, we conceive ourselves to have conclusively established both these facts in the affirmative; and to have demonstrated that it was the intention of the parties to the Treaty of 1783 that the point which is designated in that Treaty as the North-west Angle of Nova Scotia, should be found on Highlands to the South of the River St. John. Such is the position of the Highlands and the point of departure claimed on the part of Great Britain.

Having now, therefore, as we believe, shewn, affirmatively, that the highlands now claimed by Great Britain as the Boundary Line of the United States, are really those intended by the Treaty of 1783, we shall endeavour, by arguments and evidence equally conclusive, to demonstrate, negatively, that the line of Boundary claimed by the United States cannot, even on their own shewing, and treating the question by their own arguments, be along the highlands intended by that Treaty.

No

We have seen, by the evidence adduced respecting the proceedings in the American Congress, as well as by the testimony of the American Commissioners, that the only ground of claim originally advanced by the United States to territory on and about the River St. John, was in virtue of the rights which they held to accrue to them under the Charter of Massachusetts Bay.* extension of territory in that quarter beyond the limits of that province was pretended to by them. The ultimate agreement of the American Commissioners, was" to adhere to the Charter of Massachusetts Bay." We have seen that their conception of the limits of that province never extended beyond the River St. John.

The United States now lay claim to territory far to the north of that river. The ground of this claim, however, must necessarily be still the same as in 1783, since the provisions of the Treaty of 1783, signed by the American

* Two very singular assertions on the subject of the claim of the United States to the territory in question, in reference to the Charter of Massachusetts Bay, have been made by a very high authority, being no less a person than Mr. Gallatin, one of the Plenipotentiaries of the United States for negotiating the Treaty of Ghent, in a letter addressed by him from Ghent to the American Secretary of State, immediately subsequent to the signature of that Treaty.

In that letter, of which a fuller extract will be found in the Appendix, No, 12, p. 171, there is this remarkable clause.

"That northern Territory is of no importance to us, and belongs to the United States, and not to « Massachusetts, which has not the shadow of a claim to any land north of 45 degrees to the east"ward of Penobscot River, as you may easily convince yourself of by recurring to her Charters."

The singularity of one of the assertions contained in this clause consists in the supposition on which it is founded, that the United States have a claim to the district in question by some title, separate from that conferred by the Charter of Massachusetts Bay, which a reference to the Secret Journals of the Old Congress already cited by us, proves most conclusively that they never asserted. The singularity of the other assertion as coming from this quarter, consists in the denial to Massachusetts of any right on her part to that district.

In the justice of that denial Great Britain most fully concurs; but she affirms that if it is admitted as valid with respect to Massachusetts, it must necessarily equally embrace the United States in general, since in all the discussions anterior to the conclusion of the Treaty of 1783, relative to the territory in question, they uniformly professed to adhere to the Charter of Massachusetts Bay.

It will not escape observation that in the preceding extract one of the most distinguished statesmen in the United States expresses his deliberate opinion that the northern Territory, that is, precisely the district now in dispute, "is of no importance to the United States."

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Fief of Mada- Commissioners under their ultimate agreement above mentioned, form the sole basis of the present reference to arbitration. We shall, however, shew by documentary evidence of the most positive nature that the limits of the Province of Massachusetts Bay never did, and never could, extend to the line now claimed by the United States.

Appendix, No. 13 to 25 inclusive,

p. 172 to p.215.

In the British separate transcript (A a) of the map annexed to the convention under the denomination of the map A, there will be perceived, marked in green, a tract of country situated on the Madawaska River, and the Lake Temisquata, at a short distance from the River St. John. That district, laid down. according to the most accurate measurement founded on the documentary authority hereinafter specified and annexed, represents a portion of territory denominated the Fief of Madawaska", which was originally granted in the year 1683, (that is, eight years prior to the Charter of Massachusetts bay,) to a French subject, by the Governor of Canada, which was then a French Province.

That Province remained subject to France from that period down to the year 1763, at which time the whole of the French possessions in that part of North America were definitively ceded by Treaty to Great Britain. During that entire period, however, and down to the present day, the Fief of Madawaska, in spite of all transfers, whether of the Province generally from nation to nation, or of itself individually from hand to hand, has preserved its individuality under the original grant, and has constantly been, and is at this moment, subject to the jurisdiction of Canada.

In proof of the accuracy of this assertion, we refer to the annexed papers, numbered from 13 to 25 inclusive.

The first of these papers, marked 13, contains the original grant of that territory in 1683. The others display the successive deeds of transfer and acts of jurisdiction exercised over it in Canada, from that period to the year 1802; since which time the fief has remained in possession of the same occupant.

Here, therefore, exists an extensive Possession incontestably Canadian, held by virtue of the rights derived to Great Britain, from the cession to her of Canada by France, far within the Line of Boundary claimed by the United States, as having formed part of the Province of Massachusetts Bay.

Now, on what possible ground can the United States, who, in preferring their claim in 1782 to Territory in this quarter, professed to adhere to the charter of Massachusetts Bay, now lay claim to Territory which was granted to a French Subject by a French Governor of Canada, before the existence of the Charter of Massachusetts Bay, and which has always formed an integral portion of Canada, whether held by France or Great Britain?

But not only does this interposition of territory, unquestionably Canadian, invalidate the claim of the United States, as founded on the Charter of Massachusetts Bay, but it also, when considered under another point of view, totally breaks down their argument respecting the line of highlands claimed by them; for it disables those highlands from fulfilling the distinctive condition required of them by the Treaty of 1783, namely, that they shall divide the rivers falling into the St. Lawrence from those which fall into the Atlantic Ocean. Amongst these latter we have seen that the United States include the River St. John.

On consulting again the British transcript of the map A, it will be seen that the Fief of Madawaska extends from near the sources of the River Madawaska to within a few miles of the River St. John, of which it is the principal tributary in that quarter.

We conceive that it will hardly be pretended, that the Seigniory of Madawaska could have been considered, at the period of the original grant, as an insulated portion of Canada, totally disunited from that Province. We therefore assume that the Province of Canada extended, at the period of the original grant of the Fief of Madawaska, uninterruptedly, from beyond the Line

of Boundary now claimed by the United States, along the Madawaska River, Fief of Mato the entire extent of that Seigniory. But assuming this to be the case, it dawaska. is manifest that the American Line must, at the point towards the source of the Madawaska, experience an absolute chasm,-a complete interception,-by the interposition of that portion of Canada.

But how would such a line fulfil the conditions of the Treaty? It would certainly, in that case, neither run along highlands, nor would it divide rivers falling into the St. Lawrence from rivers falling into the Atlantic; since the upper part of the Madawaska would undoubtedly be on the same side of the line with all the rivers which fall into the St. Lawrence.

But without entering into arguments which might be derived from other sources, to shew what the general Boundary Line of Canada was, we may fairly assert, that the simple fact of the Fief of Madawaska having been originally granted and invariably held under the jurisdiction of Canada, whether French or English, goes far to warrant the conclusion that the whole tract of Country in which that Fief lies, was always considered and treated by the Authorities of Canada as an integral portion of that Province.

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Upon such assumption or assertion alone, however, whatever may be its Canadian Jujustice or strength, we do not propose to rest our argument. That the Country disputed Terhas been so considered and treated is demonstrable from documentary evi- ritory. dence of an equally conclusive character with that already adduced on behalf of the Fief of Madawaska. To that evidence we accordingly appeal.

On the 24th of January, 1765, a public notice, hereunto annexed, was Appendix, No. 28, p. 225. issued by the Office of the Provincial Secretary in Canada, and published by authority, according to custom, in the Quebec Gazette, by which notice all Canadian inhabitants were prohibited from interfering with the hunting ground of the Indians down to the Great Falls of the River St. John.

No. 26, p. 220,

Again, on the 11th of November, 1784, that is, but one year subsequent Appendix, to the Treaty of 1783, an Indian was condemned by the Courts of Canada, No. 27, p. 222, and executed for a murder committed at Madawaska. The documents con- No. 28, p.223. taining an account of this proceeding are hereto annexed.

Again, in the year 1789, proceedings were commenced in a Court at Appendix, Quebec, and continued to the 20th of January, 1791, in an action for damages No. 29, p. 228. brought against Augustin Dubé and Pierre Duperé, residing at Madawaska, in which the defendants put in a plea against the jurisdiction of the Court of Quebec, alleging that they resided within that of New Brunswick. The plea was rejected on various grounds; amongst others, absence of proof on the part of the defendants that Madawaska was not within the jurisdiction of Canada; and the defendants were cast accordingly.

Again, on the 10th of November, 1791, a Sheriff's notice was published Appendix in the Quebec Gazette for the sale of lands of the said Pierre Duperé at Madawaska, apparently in execution of the judgment in the last-mentioned

case.

Again, in 1785, the Council of Quebec took into consideration the expediency of making a road from Kamouraska on the St. Lawrence, to Lake Temisquata, along that district called the Temisquata Portage, in order, as it is stated, to obtain an easy and speedy communication between the Provinces of Canada and New Brunswick, particularly in time of war, when an easy "and speedy communication, independent of the States of America, becomes absolutely necessary; and when, in times of peace, from the inconvenience " of sending Government and other Despatches by way of New York, which “is every day more apparent, the American Postmaster having lately refused "the Postmaster-General here (at Quebec) to allow the Couriers from this "Province to pass through their territories, insisting that all letters shall go by their mails only."

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Appendix,

No. 30, p. 231

Again, in 1787-1792, the question of the respective Boundaries of Canada Appendix, G

No. 31, p 232.
No. 32,
p. 233.

Canadian Ju- and the then newly-erected Province of New Brunswick was brought before risdiction in the Council at Quebec. The paper which contains an account of the proceedritory. ings thereupon is highly valuable and important, especially as proving that what

disputed Ter

Appendix, p. 239.

Appendix,
No. 33, p. 245.

Appendix,

ever disputes may have existed between the respective British Provinces as to their several limits, not the smallest doubt seems to have been ever entertained by them as to the right of Great Britain to the whole territory thus contested between the provinces.

In this document it is shewn, that for several years prior to 1792 the Government of Canada had established a militia at Madawaska, and that the Courts of Quebec had exercised jurisdiction in various cases within that settlement. It will also be seen therein, that, in opposition to the claim set up at that time by New Brunswick to a Boundary north of Lake Temisquata, the Committee of the Council of Quebec contended that such Boundary would interfere with "the seigneuries under Canadian grants as far back as the years 1623 " and 1683, besides the Accadians settled above the Great Falls of St. John's River.” The report of the Committee proceeds thus :-" The Committee most humbly submit to your Lordship whether it would not be for the advantage of both "Governments that the Province of Quebec be separated from that of New Brunswick by a line running along the highlands which extend from the head of "Chaleurs Bay to the foot of the Great Fall of St. John's River, and from thence crossing the river (so as to include the whole of the portage or carrying place) "and continuing in a straight line towards the sources of the River Chaudière, which rise on the highlands that commence at the said head of the Bay of Chaleurs, "and extend all the way to the north-westernmost head of Connecticut River.” This opinion clearly shews what conception was at that time entertained by the Canadian authorities respecting the Boundaries of Canada and Nova Scotia. In a subsequent part of the same document, it is distinctly stated that at that time (in 1792) "the line between the two Provinces of Canada and New "Brunswick had not been ascertained;" and it was then the declared object of the Canadian Government, "to call the attention of His Majesty's Ministers to “the adjustment of the limits necessary for preserving the public tranquillity "of both Provinces."

Again, in 1791, an official list was made out of the Parishes in the Province of Quebec, in which list the Parish of Madawaska is included, and a description given of the species of tenure by which the settlers held their land; and a census of the male population, above 19 years of age, is also thereto annexed.

The above-cited series of documents clearly establishes Canadian jurisdiction, as far as the Great Falls of the St. John, for a long period, both before and since the Treaty of 1783, and thereby further negatives the American claim to this Country, as founded on the supposed limits of Massachusetts Bay.

Furthermore there can be shewn, from American testimony, a de facto posNo. 34, p. 246. session by Great Britain of the district, called the Madawaska Settlement, on the River St. John, beginning a few miles above the Great Falls, and extending beyond the confluence of the River Madawaska with the St. John, which possession was never called in question by the United States until the termination of the war between Great Britain and the United States, in 1814.

We think it necesssary, in order to prevent mistakes from the similarity of the names, to state here that the "Madawaska Settlement," and the " Fief of Madawaska," are two totally different things, and not in any way connected with each other. The former is a modern colony, planted subsequently to the Treaty of 1783: the latter is, as we have shewn, an hereditary seigniory, granted by the Government of Canada a century antecedent

* Subsequently to the Treaty of 1783 the British Province of Nova Scotia was divided into two separate Provinces, of which the one retained its former name; and the other, embracing the British territory in the vicinity of the due north line, and the adjacent parts of the old Province of Nova Scotia, received the name of New Brunswick.

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