to the Treaty of 1783, and from that period to this, subject to the jurisdiction Madawaska of Canada. We prefer giving the account of the Settlement of Madawaska in the very words of the Special American Agent, who was sent by order of the American Government to inquire into its origin, history and actual condition. "This settlement," says Mr. Barrel! in his report, "derives its name from "the River Madawaska, which empties itself into the River St. John about thirty-six miles above the Great Falls, and about one hundred and sixty miles above Fredericton. The first settlers arrived soon after "the Treaty of 1783, and the first grant, which was of fifty-one seyeral "lots or plantations of land, was made to Joseph Muzeroll and fifty-one "other French settlers, in the month of October 1790, by Thomas "Carleton, Esq. then Lieutenant-Governor of the Province of New Bruns"wick. The land granted lay at intervals between the River Verte and the "Madawaska River, nine miles distant from each other, and on both sides of "the River St. John. The second grant was of 5253 acres of land lying below "the River Verte, and was made to Joseph Soucer and others by Lieutenant"Governor Carleton in August 1794. These are the only grants ever made "by the British Government within the settlement, excepting one to Limo "Hibert* of 250 acres of land opposite to and upon the River Madawaska, in May 1825. "The laws of the Province of New Brunswick appear to have been always in force since the origin of that settlement. The settlers have acquiesced in the "exercise of British authority, both civil and military, among them, and have "for many years had an organized militia in the settlement. * "The population of Madawaska amounts to about 2,000, and is almost exclusively French." In confirmation of the above statement, copies of the original grants of land in that settlement, made in 1790 and 1794, are hereto annexed. Settlement. Appendix, No. 35, p. 254. In further corroboration of the same statement, we also quote the No. 37, p. 260. deposition of one of the first settlers, Simon Hebert, which was taken on oath, on the occasion of the trial, before the Tribunals of New Brunswick, of one John Baker, mentioned in the Report above-cited. That deposition establishes clearly the fact stated in that Report, of the settlers having, from the very commencement, considered themselves as subject to British jurisdiction. "Simon Hebert, being sworn, deposed as follows: Appendix, "I live two miles below Madawaska River. Have lived there forty years No. 38, p. 266. "next month; I moved there from the French village about ten miles above "Fredericton. I have a grant of my land from this Province. It is the first grant in the Madawaska, and was made about two or three years after "I moved up. I live under this Government, and have always lived under it. "All the Madawaska settlers live under the same Government. I vote at "elections. The first time was about eight years ago." This last-cited evidence proves an actual jurisdiction over this Territory, since the Treaty of 1783, by the British Province of New Brunswick. The claims of this Province and Canada, with respect to this and other parts of the territory in this quarter are conflicting inter se, and shew the uncertainty of their respective Boundaries, which in fact have never been settled, and may require the interference of the Mother Country to adjust: but these conflicting intercolonial claims, which have arisen since the Treaty of 1783, are altogether irrelevant to the present controversy between Great Britain and the United States, as a Foreign Power, and under that Treaty. Whether under the one province or the other, the possession is British. The right to that possession was first called in question by the United States, and that only constructively, at the period of the negotiations at Ghent in 1814. * Simon Hebert. Madawaska Appendix, A reference to the two annexed official decennial censuses of the United States, and, specifically, of the State of Maine, will shew that in 1810 no mention was made of the Madawaska Settlement; whereas in 1820 that No. 39, p. 277. Settlement was included in the general estimate of the population of the United States; it being, however, stated in this Census of 1820, that the inhabitants of this settlement "supposed they were in Canada." Highlands. Appendix, Under all these circumstances, Great Britain conceives herself to have a fair right to assume that this Settlement and territory have been, from the earliest period, considered a part of the British dominions. We now believe ourselves to have demonstrated, from all the considerations and evidence above adduced, that the line claimed by the United States as their boundary, cannot possibly, in point of position, be the line intended by the Treaty of 1783. We have already demonstrated, on the other hand, that the line claimed by Great Britain is in strict accordance with the intentions of the framers of the Treaty, and does in every respect, in point of position, fulfil the conditions imposed on it by the Treaty. There is a separate ground, namely, that of the specific meaning and character attached to the term "highlands," on which we shall briefly consider the question before we close this part of our argument; and we propose to shew, in the first instance, that in this more contracted view of the question, as well as on the broader and higher grounds already discussed, the highlands claimed by Great Britain have a just title to be considered as fulfilling the conditions of the Treaty. We will then consider the character of the line claimed by the United States in this respect. Great Britain then maintains that the term highlands employed in the Treaties implies not merely lands which divide rivers flowing in opposite directions, but high, i. e. elevated, lands, or, in other words, a mountainous tract of country. The United States, on the contrary, contend that the term "highlands" does not imply visible elevations, but simply lands, whether high or low, which cause waters to flow in opposite directions. It is of course not pretended, on the part of Great Britain, that in order to support the character which she assigns to the term "highlands," those highlands should present an absolutely unbroken and continuous ridge, without the intervention of valley or swamp. She does, however, maintain, that the " highlands" ought to conform to the above-cited definition of the term, by displaying a generally elevated and mountainous character; and such a character she affirms that the highlands claimed by her do in reality bear. Under this view of the intent of the term " 'highlands" as used in the Treaties, Great Britain maintains that the point called Mars Hill is, with propriety, claimed by her as the point of departure on the "highlands" as well on the ground of that point being the nearest real elevation met by the due north line drawn from the source of St. Croix River, as on the other and more essential grounds already discussed. From Mars Hill the surveys hereto annexed, which were made by Sur, p. 88. veyors appointed for that purpose by the Commissioners under the 5th Article ,, k, p. 90. of the Treaty of Ghent, shew that a generally hilly country is found to extend towards the eastern branch of the River Penobscot. D,2. m,p.113. The accuracy of those surveys and the reports of the Surveyors which accompany them, has been attempted to be impeached by the Agent of the United States under the 5th Article of the Treaty of Ghent, but ineffectually. * Although in this statement such only of the reports made under the 5th Article of the Treaty of Ghent are specifically adduced in evidence, as Great Britain considers necessary for the support of her claim, the whole collection of those reports and surveys are nevertheless annexed hereto, in order that full and impartial means may be afforded to the arbiter to make immediate reference to any part of them, and to judge between the conflicting representations of the respective British and American Surveyors. No. 11, p. 148. It will be seen by the annexed account of certain proceedings, which took place Highlands. between the British and American Commissioners in 1821, that the British Agent, at the same time that he objected to the American surveys and reports, in Appendix, part, and proposed to the Board to have the Surveyors examined on oath as to the accuracy of those documents, offered voluntarily to have the British Surveyors equally examined on oath as to the accuracy of their surveys, which had been called in question by the American Agent. That offer was declined on the part of the Americans. A proposal previously made to the American, by the British, Commissioner, to have those parts of the country, which were affirmed to be inaccurately laid down in the respective surveys, surveyed afresh, had been equally declined on the part of the United States. Without in any way questioning the grounds on which the American Commissioner declined acceding to the two propositions above stated, which he had certainly a full right to do, we insist upon the simple fact of a proposal having been made in the strongest and clearest terms on behalf of Great Britain, that the accuracy of the British surveys should be subjected to the test of a solemn examination on oath; and from that fact we conceive ourselves to have a fair right to infer, that the statements and delineations of the British Surveyors are substantially correct; and we accordingly assume, that the country between Mars Hill and the head of the eastern branch of the Penobscot, answers generally to the definition of highlands, namely, "mountainous country," above given by us. These highlands connect themselves with a mountainous tract of country, well known at the period of the formation of the Treaty of 1783, and long before, by the distinctive appellation of "The Height of Land." That Height of Land had been described in many public documents as dividing the waters Appendix, that fall into the Atlantic Ocean, from those which fall into the River St. Law- No. 6, p, 33. rence to the west of the sources of the River St. John, and the western head of the Penobscot; that is, the same waters which we have shewn that the American Congress and Plenipotentiaries contemplated in their first proposition. before cited, and must still have contemplated at the period of the signature of the Definitive Treaty, because the same designation of the dividing highlands is still preserved therein. That the connexion above noticed exists between the western and eastern section of the highlands forming that height of land," to the south of the River St. John, we affirm not only on the authority of the Surveyors employed under the Boundary Commission, but also on that of an American topographer of repute, Mr. Greenleaf, who published in 1816 a "Statistical View of the State of Maine," illustrated by a. map of the same State, delineated by himself. 66 With reference to the highlands in question he says, "with the exception of “a small tract at the eastern extremity, and some detached elevations along the "central part of the north-western Boundary, the mountainous part of the "district may be included within an irregular line drawn from the line of New Hampshire, not far from Saco River; thence proceeding north-easterly, and crossing Androscoggin River near Dixfield, Sandy River above Farmington, "Kennebec River above Bingham, the west branch of the Penobscot at the Lake 'Pemmidumpkok, and to the EAST BRANCH OF THE PENOBSCOT near the mouth of the Wassattaquoik; thence north so far as to include the heads of the Aroostook; thence south-westerly to the head of Moose-head Lake, and thence "westerly to the Boundary of the district near the sources of the Du Loup. "The greatest length of this section is from south-west to north-east, about 160 "miles; its greatest breadth about 60 miles; and it comprises about one-seventh part of the district. No observations have been made to ascertain and compare the height of the different elevations in this section; but from estimates "which have been made on the falls of the rivers, proceeding from different parts "of it, and from the much greater distance at which the mountains in the 66 H Highlands. Appendix, "western part are visible, it is evident that the western, and particularly the north-western part, is much higher than the eastern; and the section in its "whole extent may be considered as presenting the highest points of land between "the Atlantic and the St. Lawrence." The preceding description is extracted from the Report of the British Commissioner under the 5th Article of the Treaty of Ghent, who adds, "that in "the map accompanying Mr. Greenleaf's work, and which that work was intended to explain, there is not a vestige of any highlands in that tract of Country through which the Boundary is claimed on the part of the United "States, except the Timiscouata Portage, which, it is contended on the part of "His Majesty, is proved also to be the case from the result of the exploring "surveys in that quarter. And it is here to be observed that the Agent of the "United States has not attempted to call in question the correctness of the "above statement of Mr. Greenleaf."* Throughout the whole extract from Greenleaf above-cited it will be perceived that it is a question not of lands dividing rivers, but of elevations and it is shewn that those elevations extend to the eastern branch of the Penobscot, which river we have demonstrated that the framers of the Treaty of 1783 clearly intended to divide from the River St. John. The surveys above referred to shew that the general character of the district between the eastern branch of the Penobscot and Mars Hill is mountainous. Great Britain, therefore, on this ground, as well as on the others already expounded, conceives herself fairly entitled to assert that Mars Hill, and the line of boundary of the United States, as claimed by her from Mars Hill to Connecticut River, answer the intent of the Treaty, in which it is declared that the point designated therein as the north-west angle of Nova Scotia shall be placed on the highlands, and that the line of boundary shall be traced from that point along the said highlands which divide the Rivers which empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean. With regard to the line claimed by the United States as their Boundary a reference to the official surveys and reports made by the Surveyors appointed » Pp. 124. by the Commissioners under the 5th article of the Treaty of Ghent will fully confirm the assertion which we here confidently make, that not one-third of that line can be shewn to run along any lands which, according to the just definition of the term, are entitled to the appellation of " highlands." ,,, p.133. t. p.135. D, 13. 14. 15. 19. 20. 23. 24. Appendix, By an attentive examination of those reports and surveys, we shall find that with the exception of one spot on the Temisquata Portage, no eminences like those which are found in the vicinity of the British line have been observed, from which the country and its various elevations could have been viewed; and from the only place, where highlands undoubtedly exist on the Temisquata Portage, no ranges of any extent running in the direction of the Line of Boundary claimed by the United States have been seen on either side, east or west. Setting aside the survey and report+ of the American Surveyor, Johnson, as, with respect to the particular country now under consideration, altogether ideal and unfounded in fact, we proceed to examine cursorily, according to descriptions better worthy of attention, the individual spots of the American line which have been visited by the surveyors. The north line, as described by the United States, terminates at a place No. 10, e, p, 74 where there are no highlands agreeing with the definition above given. It appears from Mr. Odell's report, that from the high bank of the Grande Fourche of the Restigouche the land declines gradually all the way towards Beaver Stream, and especially from the place where the line intersects the last waters of the Restigouche until its intersection with Beaver Stream. This district is *See copy of Greenleaf's Map, exhibiting the mountainous tract here described, in collection of Maps and Surveys D annexed. D, 31. + See Appendix, No. 11, p. 148, and No. 44. p. 306. therefore no better entitled to the appellation of highlands than the whole of the Highlands. surrounding country. The next spot along the line, proceeding westerly, which has been visited, Appendix, is the division of the waters of the second fork of the Lakes of Green River No, 10,0,p.122. from those of the Rimousky. There, indeed, there are highlands; but they do not divide, but rather run parallel to the waters to be divided. From the reports and surveys of Mr. Burnham the American, and Dr. Tiarks the English Surveyor, it appears that the dividing land between the waters is a swamp having all the features, the appearance, and vegetation of low land. The highlands lie in unbroken ridges parallel to both waters, running south and north, so that those waters take their opposite courses in a valley between two ridges. The low swampy spot, in which the waters divide, is an insulated point, without any continuity or connexion with other similar spots; so that, in fact, it is impossible to divine which way the Line of Boundary ought to run from that point, since there are no highlands to direct its course as required by Treaty, and it is necessitated to find its way arbitrarily from one detached point to another, for want of such highlands. »t,p.136. D, 13. 15. The next spot visited by the Surveyors, is that of the division between the Appendix, northern branch of Tuladi River and a branch of the same River Rimousky No.10,0,p.123, before mentioned. It appears that the features of this district were precisely the same as those at the preceding spot; and the same remarks apply therefore with equal force to this place. This is all we know certainly, as collected from actual survey of the country along the line claimed by the United States, east of Temisquata portage. Therefore in that country it cannot be affirmed that there are any highlands answering to the demand of the Treaty. On the Temisquata Portage there are highlands between the waters of Green River and those of the River St. Francis; but those waters were never traced up to their sources, so that it is not known what appearance the country may there present. ,,t,p.137. D, 14. No.10,s,p, 133, ,,t,p, 138. 24. At the next spot visited by the Surveyors, westward of Temisquata Port- Appendix, age, namely, the division of the waters of the River Ouelle from those of the Little St. John, we again find the same absence of dividing highlands in the immediate vicinity of the division of those waters. Whatever highlands are found in that quarter run parallel to the river, at some distance from the point of division. It does not appear that there are any eminent Highlands on the line claimed by the United States near the head waters of the numerous branches of the River St. John, nor have we any description of ridges of highlands dividing any of these heads from the contiguous waters of the rivers emptying into the St. Lawrence. The Surveyors ascended several of these branches; and it does not appear that any highlands, really entitled to that designation, were anywhere observed. No other spot further westward in the line claimed by the United States was visited by the Surveyors, except the point where the British and American lines meet at the" Height of Land" heretofore treated of. In the American transcript of the map A, as in some of the original American Surveys, a line of what appears to be mountains, is represented as extending continuously from the point which the United States claim to be the north-west angle of Nova Scotia, to that point near the source of the St. John where the British and American lines meet. If the line so delineated is intended to represent real elevations, we must affirm that representation to be No. 11, p. 148. altogether unsupported by evidence, as a reference to the aforesaid surveys and No. 44, and reports will abundantly prove. If, on the other hand, those highlands Appendix, p. 306. |