Islands in St. Mary's The surveys having been completed and the arguments of the agents concluded, the commissioners endeavored to reach an agreement, but on two points they were unable to do so. The first difference arose at the beginning of the line in St. Mary's River, the water communication between Lake Huron and Lake Superior. In this river there are numerous small islands, but also three large ones, namely, St. Joseph's, containing 141.9 square miles, or 90,816 acres; St. George's or Sugar Island, containing 40.5 square miles, or 25,920 acres; and St. Tammany's Island (so named by the commissioners out of compliment to the United States, St. Tammany being the Indian saint of New England, but now commonly called Encampment Island), containing 15.5 square miles, or 10,164 acres. In drawing the line under Article VI., which terminates at a point in the Neebish Channel, near Muddy Lake, at the head of St. Joseph's Island, the commissioners assigned this island to Great Britain. In commencing the line under Article VII. they assigned the Island of St. Tammany without controversy to the United States; but as to St. George's, or Sugar Island, they were unable to agree. The Neebish Channels. By the islands of St. Tammany and St. George (the latter of which lies north of the former) and the adjacent main shores, the water communication at the Neebish Rapids is formed into three channels, respectively designated as Eastern Neebish, Middle Neebish, and Western Neebish. Of these the Eastern Neebish, which passes into Lake George on the eastern or Canadian side of St. George's Island, is the only one navigable for ships. The Middle Neebish, while navigable for boats, is obstructed by shoals and rocks, and the Western Neebish is navigable only for canoes. Moreover, above the point where the islands of St. Tammany and St. George form the three channels in question, the water communication between Lake Huron and Lake Superior is divided by St. George's Island into two parts or channels only, one of which, called Lake George, lies on the eastern or Canadian side and is entered by the Eastern Neebish, and the other of which lies on the western or American side and is entered either by the Middle or the Western Neebish. The former is not only by far the larger both in superficial extent and in depth, but is the only one navigable for ships of the larger class, the American being known as the canoe channel. Views of American Mr. Porter, the American commissioner, Rules of Decision: claimed the Eastern Neebish and Lake George as the boundary, on grounds which may be briefly explained. In the proceedings under Article VI. he drew up and informally proposed to his colleague the following rules: 1. That the boundary from St. Regis to Lake Superior should invariably be a water line. 2. That where there was but one navigable channel it should be pursued without reference to its size or its contiguity to one or the other shore. 3. That where there were two navigable channels the line should be carried through the one having the greater quantity of water. 4. That where there were three or more channels the line should pass along the one nearest to the center, provided a good navigation should thereby be left to each party. 5. That where there was no navigation the line should be run only with reference to a fair division and proper location of the territory. Mr. Porter admitted that Mr. Barclay, the British commissioner, declined to yield a distinct and positive recognition of any of these rules, except the first, on the ground that cases might occur in which, from peculiar interests and localities, a departure from abstract principles might be desirable, and in which the restrictions imposed by them might prove to be inconvenient; yet he claimed that the proceedings under Article VI. were in fact governed by the rules proposed by him, with the exception of some trifling deviations intended to accomplish the design of the fifth rule-a satisfactory division of territory. Applying these rules to the case in question, the first occasioned no disagreement, since it was mutually conceded that the line was not to cross St. George's Island, but was to pass through either the eastern or the western channel. But by the second rule, said Mr. Porter, the case was precisely decided, and in accordance with it the eastern or navigable channel must be taken as the boundary. The third and fourth rules, though not precisely applicable, yet in principle supported the claim to that channel. The fifth also would be better fulfilled by its adoption; for, as St. Joseph's Island had been given to Great Britain and St. Tammany's to the United States, the only approach that could be made to an equal division of the island territory in St. Mary's River would be by giving St. George's also to the latter country. Views of British Mr. Barclay, admitting that the Eastern Rules of Decision: Neebish was alone navigable for the larger class of trading vessels employed in those regions, but observing that just above was the Sault Ste. Marie, by which navigation was interrupted, maintained that St. George's Island should be allotted to Great Britain. The commissioners, in determining the boundary under Article VI., practically adopted, said Mr. Barclay, two rules: 1. That islands intersected by a middle line, measured equidistant between the main shores, were to be apportioned in quantity (of extent) as equally as possible between the two nations, according to the proportions falling on the respective sides of such equidistant line. 2. That wherever an island was intersected by such a middle line into two unequal parts (which was generally the case when an island was intersected), the nation on whose side the larger portion lay was entitled to elect to retain the whole, the nation on whose side lay the smaller portion being entitled, in the future appropriation of islands, to credit for the portion so surrendered; or, if the latter nation so desired, the nation having the larger portion was permitted to surrender it and receive an equivalent elsewhere; and the line was to be settled accordingly. Mr. Barclay admitted that Mr. Porter in terms declined to establish these rules, but claimed that "he afterwards fully adopted them in practice." There was, said Mr. Barclay, only one case under Article VI. in which the American commissioner refused to abide by them, and that related to three very small islands, called Sugar, Fox, and Strong islands, in front of Amherstburg, in the Detroit River. These islands the British Government, rather than interrupt the amicable negotiations for an award, directed its commissioner to surrender, which he did with a formal written declaration that he "did not thereby depart from any of the principles which, as His Majesty's commissioner, he had asserted and which formed the general prac tical basis of the arrangement, so far as the said boundary had been agreed upon." Besides this case, however, Mr. Barclay observed that there might have been "one or two other instances under the sixth article wherein islands which would have been intersected by an equidistant middle line, so as to throw a large portion on one side, were yet allotted to the other side, and where the boundary line was conducted accordingly. This was done where a party required territory to make up its amount of intersected islands in which there may previously have been produced a deficiency, in consequence of the other party having received a whole island or whole islands by reason of the greater part thereof happening to be on its side of the equidistant line." Relative Positions of Thus both the commissioners stood in respect of rules in the same position. Each had pro posed rules which the other refused formally to adopt; each claimed that the rules which he proposed were afterward in fact observed by the other; and both were to a great extent right. The rules proposed by them were not wholly irreconcilable. While Mr. Porter seemed to assign a greater importance to the question of navigation than Mr. Barclay did, yet he admitted that deviations were made from his own rules for the purpose of securing an equal division of territory; and in reaching an agreement under Article VI. each commissioner doubtless secured enough concessions to lead him to think that his own rules were practically admitted by the other. What one regarded as an abatement from his own rules the other regarded as an acknowledgment of his. British Commissioner's Claim. The Applying his own rules to St. George's St. George's Island: Island, Mr. Barclay maintained that by both of them Great Britain's title was clear. greater part of St. Tammany's Island lay on the American side of the equidistant line, and it was at once allotted to the United States. The greater part of St. George's fell on the British side, and should be allotted to Great Britain, both for that reason and as compensation for the surrendered portion of St. Tammany's. The award under Article VI. itself showed, said Mr. Barclay, that the commissioners had carried the line "through the middle" of the chain of water communication, altogether disregarding the principle of a chanuel forming a boundary. Thus in the River Iroquois the upper Long Sault Island, the lower Long Sault Island, and Barnhart's Island were allotted to the United States because they lay mostly on the American side of an equidistant line, though the only navigable channel in descending the river lay between them and the American main shore. So, in the case of the islands at the head of Lake St. Clair, the line was conducted through the channel which passed as nearly as possible equidistant from the respective main shores. though the channel used by large vessels was contiguous to the American main shore. In order however to avoid the objection that the cession of St. George's Island would leave the ship channel entirely within British territory, Mr. Barclay proposed that if the American commissioner would consent to establish the line through the Middle Neebish channel and the Sugar Rapids and give St. George's Island to Great Britain, he would stipulate that the Eastern Neebish should remain free for the commerce of both nations, provided the American commissioner would make a similar stipulation as to the channel south of Barnhart's Island and the two Long Sault islands and the channel contiguous to the American main shore connecting the River St. Clair with Lake St. Clair. The fact that the American commissioner had declined this proposition was, said Mr. Barclay, an additional reason for giving Great Britain the power to control the navigation at the St. Mary's River. In this relation Mr. Barclay observed that Mr. Porter, in their conferences under Article VI., offered to declare in writing that the appropriation of the islands in the Long Sault was made with the understanding that the several channels were common to the use of both nations. This suggestion Mr. Barclay said he declined at the time, on the ground that, as the channels were free to both governments by the law of nations, it was superfluous for the commissioners to declare them to be so. Mr. Barclay also contended, on the strength of Vattel, De Martens, and Grotius, and of the language used by Mr. King and Lord Hawkesbury in their unratified convention of 1803, that a line equidistant from the main shores was the true middle intended by the treaties describing the boundary; and it was, he said, the line which had been adopted not only under Article VI., but also under Article VII., so far as the commissioners had been able to agree.1 sioner's Claims. In response to these arguments Mr. Porter, St. George's Island: referring first to the islands at the head of American Commis- Lake St. Clair, observed that the River St. Clair discharged itself into the lake of that name by eight or ten different channels; that the boundary was there drawn through the navigable channel nearest to the center of the group of islands, though in such a manner as to 1H. Ex. Doc. 451, 25 Cong. 2 sess. 5627-12 |