"Great Britain and the said United States, but which Treaty was not to be con- Provisions of “cluded until terms of peace should be agreed upon between Great Britain and Treaties. France, and His Britannic Majesty should be ready to conclude such Treaty accordingly; and the Treaty between Great Britain and France having since "been concluded, His Britannic Majesty and the United States of America, "in order to carry into full effect the Provisional Articles above-mentioned, according to the tenor thereof, have constituted and appointed, that is to "say, His Britannic Majesty, on his part-David Hartley, Esq. Member of "the Parliament of Great Britain; and the said United States, on their part— “John Adams, Esq. late a Commissioner of the United States of America "at the Court of Versailles, late Delegate in Congress from the State of Mas"sachusetts, and Chief Justice of the said State, and Minister Plenipotentiary of the said United States to their High Mightinesses the States-General of "the United Netherlands; Benjamin Franklin, Esq. late Delegate in Congress "from the State of Pennsylvania, President of the Convention of the said State, and Minister Plenipotentiary from the United States of America at "the Court of Versailles; John Jay, Esq. late President of Congress, and "Chief Justice of the State of New York, and Minister Plenipotentiary from "the said United States at the Court of Madrid; to be the Plenipotentiaries "for the concluding and signing the present definitive Treaty: who, after having reciprocally communicated their respective full powers, have agreed upon and confirmed the following articles: ARTICLE I. "His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, "Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be Free, Sovereign, and Independent States; that He treats with them as such; and for Himself, His "Heirs and Successors, relinquishes all claims to the government, propriety and territorial rights of the same, and every part thereof." ARTICLE II. "And that all disputes which might arise in future on the subject of the "Boundaries of the said United States may be prevented, it is hereby agreed "and declared, that the following are and shall be their Boundaries, 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; thence down along "the middle of that river to the forty-fifth degree of north latitude; from "thence by a line due west on said latitude, until it strikes the River Iroquois or Cataraquy; thence along the middle of said river into Lake Ontario; through the middle of said lake, until it strikes the communication by water between that lake and Lake Erie; thence along the middle of said commu"nication into Lake Erie; through the middle of said Lake, until it arrives "at the water communication between that lake and Lake Huron; thence "along the middle of said water communication into the Lake Huron; thence through the middle of said lake to the water communication between that "lake and Lake Superior; thence through Lake Superior, northward of the "Isles Royal and Phelipeaux, to the Long Lake; thence through the middle "of said Long Lake and the water communication between it and the Lake of "the Woods, to the said Lake of the Woods; thence through the said lake "to the most north-western point thereof, and from thence on a due west 66 Treaties. Provisions of "course to the River Mississippi; thence by a line to be drawn along the "middle of the said River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude;-south, by a line to be drawn "due east from the determination of the line last mentioned, in the latitude of "31° north of the Equator, to the middle of the River Apalachicola or Cata"houche; thence along the middle thereof to its junction with the Flint River; "thence straight to the head of St. Mary's River, and thence down along the "middle of St. Mary's River to the Atlantic Ocean:-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; and from its source 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: comprehending all islands within twenty leagues of any part 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, shall respectively touch the Bay of Fundy, and the Atlantic Ocean ; "excepting such islands as now are, or heretofore have been, within the limits "of the said Province of Nova Scotia." Appendix, Appendix, The Preliminary Treaty of 1782 being adverted to in the Preamble to that of 1783, the Preamble to the first-mentioned Treaty is likewise here inserted. 66 Whereas reciprocal advantages and mutual convenience are found by experience to form the only permanent foundation of peace and friendship be"tween States, it is agreed to form the Articles of the proposed Treaty on "such principles of liberal equity and reciprocity, as that partial advantages "(those seeds of discord) being excluded, such a beneficial and satisfactory "intercourse between the two Countries may be established, as to promise "and secure to both perpetual peace and harmony.' Lastly, the Treaty of Ghent, which with respect to the Boundaries in question, grows out of, and is grounded altogether upon, that of 1783, provides thereupon in Article V. as follows: "Whereas neither that point of the highlands lying due north from the source of the River St. Croix, designated in the former Treaty of Peace "between the two Powers, as the north-west angle of Nova Scotia, nor the "north-westernmost head of Connecticut River, have yet been ascertained; "and whereas that part of the Boundary Line, between the dominions of the "two Powers, which extends from the source of the River St. Croix, directly "north to the above-mentioned north-west angle of Nova Scotia; thence 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; thence down along the "middle of that river, to the 45th degree of north latitude; thence by a line "due west on said latitude, until it strikes the River Iroquois, or Cataraguy, "has not yet been surveyed; it is agreed that for these several purposes two Commissioners shall be appointed, sworn and authorised, to act exactly in "the manner directed with respect to those mentioned in the next preceding "article, unless otherwise specified in the present article. The said Com"missioners shall meet at St. Andrews, in the Province of New Brunswick, " and shall have power to adjourn to such other place, or places, as they shall "think fit. The said Commissioners shall have power to ascertain and deter"mine the points above-mentioned, in conformity with the provisions of the "said Treaty of Peace of 1783; and shall cause the Boundary aforesaid, from "the source of the River St. Croix to the River Iroquois or Cataraguy, to be surveyed, and marked according to the said provisions: the said Com"missioners shall make a map of the said Boundary, and annex to it a de"claration under their hands and seals, certifying it to be the true map of "the said Boundary, and particularizing the latitude and longitude of the Treatics. "north-west angle of Nova Scotia, of the north-westernmost head of Con- Provisions of "necticut River, and of such other points of the said Boundary, as they may "deem proper. And both parties agree to consider such map and declara"tion as finally and conclusively fixing the said Boundary. And in the event of the said two Commissioners differing, or both, or either of them, refusing, declining, or wilfully omitting to act, such reports, declarations or "statements shall be made by them, or either of them, and such reference to a friendly Sovereign or State shall be made in all respects, as in the latter part of the fourth article is contained, and in as full a manner as if the same "was herein repeated." The contingent arrangement, relative to the proceedings of the Commissioners, with respect to Boundaries, adverted to in the above cited article, being provided for in the fourth article of the same Treaty, the part of that article relative thereto is also here inserted. It runs as follows: "It is further agreed, that in the event of the two Commissioners differing upon all or any of the matters so referred to them, or in the event of both, or "either, of the said Commissioners refusing or declining, or wilfully omitting to act as such, they shall make, jointly or separately, report or reports, as "well to the Government of His Britannic Majesty, as to that of the United States, stating in detail the points on which they differ and the grounds upon which their respective opinions have been formed, or the grounds upon which they or either of them have so refused, declined, or omitted to act. "And His Britannic Majesty and the Government of the United States "hereby agree to refer the report or reports of the said Commissioners to some friendly Sovereign or State, to be then named for that purpose, and who shall be requested to decide on the differences which may be stated in "the said report or reports, or upon the report of one Commissioner, together "with the grounds upon which the other Commissioner shall have refused, declined, or omitted to act, as the case may be. And if the Commissioner so refusing, declining, or omitting to act, shall also wilfully omit to state "the grounds upon which he has so done, in such manner that the said statement may be referred to such friendly Sovereign or State, together "with the report of such other Commissioner, then such Sovereign or State "shall decide, ex parte, upon the said report alone, and His Britannic Majesty and the Government of the United States engage to consider the "decision of such friendly Sovereign or State, to be final and conclusive on all "the matters so referred." 66 Provisions of Before we come to treat of the differences which have arisen under the Remarks on above-cited provisions, it may be advisable to make a few preliminary remarks. Treaties. on the particular scope and tendency of those provisions, as it is conceived that such explanatory observations may serve much to elucidate the subject of those differences. By an attentive examination of the stipulations contained in the 2d Article of the Treaty of 1783 above-cited, aided by a recollection of the relative position of Great Britain to the United States, we mean as a Mother Country treating with Colonies not yet recognized as independent, it will be clearly perceived that the main object had in view was not so much to designate the limits of the Territory reserved to the Mother Country, as to assign an appropriate Boundary to the new Power. It is highly important to bear this circumstance constantly in mind, as it will tend to solve many difficulties attending this complicated question, and to clear up the obscurity in which some of its essential points are involved. From the period of the cession to Great Britain by France of the Province of Canada, in 1763, to that of the Peace of 1783, the whole of that portion of North America belonged to Great Britain. When She determined to recognize the independence of a part of that Country, the question C Remarks on was, what Boundaries to assign to that part. The arrangement respecting them was made in reference to the Boundaries of the Provinces relinquished, and not in reference to those which remained under the Sovereignty of the King. In tracing those Boundaries, it appears from the Treaty that the first point which was sought to be established, was a point of departure for the general Boundary Line at the north-eastern extremity of the United States, that being taken, as it were, as the governing point of the whole Boundary to be traced west of the River St. Croix, which river was adopted as the extreme eastern limit of those States. That point of departure, which was intended to form the north-east angle of the United States, is in the Treaty designated as the northwest angle of Nova Scotia, and described in the following Clause of the Treaty, 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." 16 The main difficulty of this part of the case lies in discovering and establishing that point. The extreme obscurity and confusion in which the whole question of Boundaries in that quarter was involved, both before and at the period in question, added to the very imperfect topographical knowledge then had of the interior of the Country, which was in fact but one general wilderness, rendered it absolutely impossible for the framers of the Treaty of 1783 to effect their declared intention of laying down the several points and lines of Boundary with such a degree of accuracy, as to preclude, altogether, doubts on particular parts of it. Accordingly, the very terms of the Treaty, in reference to the point in question, manifest the uncertainty of the negotiators; and they' appear to have left to others the task of finding that point, guided by their description of it, rather than to have positively fixed it themselves. The main object was to trace this part of the northern frontier of the United States in such a manner as to throw certain rivers entirely into their territory; and, provided that object were accomplished, that is, provided the conditions attached to the highlands, and the point of departure on those highlands, were 'fulfilled, the relative position of that point of departure, with respect to the dominions of His Majesty, was of no importance. In truth, the Provinces of Canada and Nova Scotia being both unsettled in those parts, and there being between them, at the period of the Treaty of 1782-3, no certain and acknowledged Boundary, no man knew where the north-west angle of Nova Scotia really was; and the negotiators of the Treaty proceeded by other modes to describe the intentions of their respective Governments, which were, to give to each Power the entire possession of the great rivers which have their mouths within their dominions, respectively; and thereby, as the preamble of the Treaty expresses it, "to "establish such a beneficial and satisfactory intercourse between the two "Countries upon the ground of reciprocal advantages and mutual convenience, "as may promote and secure to both perpetual peace and harmony." If the letter of the Treaty therefore be not clear upon the points in question, we must appeal to the spirit and intentions of the framers of it, to elucidate that letter. Every Treaty," says Vattel, "must be interpreted by certain fixed rules "calculated to determine its meaning, as naturally understood by the parties concerned, when the Treaty was drawn up and accepted ;" and again," since "the sole object of a lawful interpretation of a deed ought to be the discovery of the thoughts of the authors of that deed, whenever we meet with any obscurity "in it, we are to consider what probably were the ideas of those who drew up the deed, and to interpret it accordingly. Again, we must consider the whole "discourse together, in order perfectly to conceive the sense of it, and to give "to each expression not so much the signification, which it may individually admit of, as that which it ought to have from the context and spirit of the "discourse." τι Such is the light and sense in which Great Britain desires that the Remarks on provisions of the Treaties now under consideration should be viewed and Provisions of interpreted. Having now premised such considerations as are calculated to insure a correct conception and understanding of the subject about to be discussed, we proceed to the consideration of that subject.* The differences now referred to arbitration are three-fold. 1st. The Parties differ respecting the point designated in the Treaties as the north-west angle of Nova Scotia and respecting the highlands along which the Line of Boundary is to be carried which is destined to divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean. 2d. The Parties differ respecting the true north-westernmost head of the River Connecticut. 3d. The Parties differ respecting the line to be drawn from the River Connecticut along the parallel of 45° north latitude to the River St. Lawrence, called in the Treaties Iroquois or Cataraguy. Treaties. Heads of Dif ference. FIRST BRANCH OF DIFFERENCE RESPECTING THE POINT In treating the first-stated branch of difference, the principal question to be determined is this: N. W. Angle of divided by "Where is the point designated in the Treaties as the north-west angle of "Nova Scotia?" This point can only be determined by first determining the those Highother objects by which, according to the Treaty, that angle is entirely governed, lands. namely, the highlands, and the rivers to be divided by those highlands. It will be observed that the 2d Article of the Treaty of 1783, after mentioning the north-west angle of Nova Scotia, as the point of departure, from whence is to be traced the line of northern Boundary for the United States, in this part the Province of Massachusetts Bay, describes that point as an angle formed by a line drawn due north from the source of the St. Croix River to the highlands, and the line as running" 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." Great Britain contends that the point thus described is found at or near an elevation, called Mars Hill, which is situated in a due north line drawn from the source of the St. Croix River, and south of the River St. John; that the highlands intended by the Treaty are those extending from that point to the Connecticut River; and that the Rivers Penobscot, Kennebec, and Androscoggin, are the rivers falling into the Atlantic Ocean, which are intended by the Treaty to be divided from the rivers which empty themselves into the River St. Lawrence. The United States have sought for this point at a spot 145 miles north of * As, in the course of the investigation of the present question by the Arbiter, it may be found expedient to make occasional reference to the historical circumstances which marked the contest between Great Britain and her Colonies, we have been induced to annex to the present Statement the history of the Reign of George III. by an historian of repute; and, for greater convenience, we have inserted in the Appendix that chapter of the work which relates to the period which more immediately preceded the close of the Contest. See Appendix No. 4, p. 14. |