rivers Restigouche and St. John, and mediately the Schoodiac Lakes and the waters of the rivers Penobscot and Kennebec, from the rivers that empty themselves into the river St. Lawrence, to wit: the rivers Beaver, Metis, Rimousky, Trois Pistoles, Green, Du Loup, Kamouraska, Quelle, Bras St. Nicholas, Du Sud, La Famine and Chaudière: "That even setting aside the rivers Restigouche and St. John, for the reason that they could not be considered as falling into the Atlantic Ocean, the northern line would still be as near to the Schoodiac Lakes, and to the waters of the Penobscot and of the Kennebec, as the southern line would be to the rivers Beaver, Metis, Rimousky, and others that empty themselves into the river St. Lawrence; and would, as well as the other, form a mediate separation between these and the rivers falling into the Atlantic Ocean: "That the prior intersection of the southern boundary by a line drawn due north from the source of the St. Croix river, could only secure to it an accessory advantage over the other, in case both the one and the other boundary should combine, in the same degree, the qualities required by the Treaties: "And that the fate assigned by that of 1783 to the Connecticut, and even to the St. Lawrence, precludes the supposition that the two Powers could have intended to surrender the whole course of each river from its source to its mouth to the share of either the one or the other: "CONSIDERING: "That, in view of what precedes, the arguments adduced on either side, and the documents exhibited in support of them, cannot be considered as sufficiently preponderating to determine a preference in favor of either one of the two lines respectively claimed by the High Interested Parties, as the boundaries of their possessions, from the source of the river St. Croix to the Northwesternmost head of the Connecticut river; and that the nature of the difference and the vague and not sufficiently determinate stipulations of the Treaty of 1783, do not permit us to award either of those lines to one of the said Parties, without violating the principles of law and equity with regard to the other: "CONSIDERING: "That, as has already been said, the question resolves itself into the selection of ground dividing the rivers that empty themselves into the river St. Lawrence from those that fall into the Atlantic Ocean; that the High Interested Parties are agreed with regard to the course of the streams delineated by common accord on the Map A and affording the only basis of a decision; "And that, therefore, the circumstances upon which such decision depends could not be further elucidated by means of fresh topographical investigation, nor by the production of additional documents: "WE ARE OF OPINION: "That it will be suitable (il conviendra) to adopt, as the boundary of the two States, a line drawn due north from the source of the river St. Croix to the point where it intersects the middle of the thalweg' of the river St. John; thence, the middle of the thalweg of that river, ascending it, to the point where the river St. Francis empties itself into the river St. John; thence, the middle of the thalweg of the river St. Francis, ascending it, to the source of its southwesternmost branch, which source we indicate on the Map A by the letter X, authenticated by the signature of our Minister of Foreign Affairs; thence, a line drawn due west, to the point where it unites with the line claimed by the United States of America, and delineated on the Map A; thence, by said line to the point at which, according to said map, it coincides with that claimed by Great Britain; and thence, the line traced on the map by the two Powers, to the northwesternmost source of Connecticut River. "As regards the second point, to wit: the question, which is the Northwesternmost head of Connecticut river: "CONSIDERING: “That, in order to solve this question, it is necessary to choose between Connecticut-lake River, Perry's Stream, Indian Stream and Hall's Stream: "CONSIDERING: "That, according to the usage adopted in geography, the source and the bed of a river are denoted by the name of the river which is attached to such source and to such bed, and by their greater relative importance, as compared to that of other waters communicating with said river: "CONSIDERING: "That an official letter of 1772 already mentions the name of Hall's Brook, and that, in an official letter of subsequent date, in the same year, Hall's Brook is represented as a small river falling into the Connecticut; "That the river in which Connecticut Lake is situated appears more considerable than either Hall's, Indian or Perry's Stream; that Connecticut Lake and the two Lakes situated northward of it, seem to assign to it a greater volume of water than to the other three rivers; and that by admitting it to be the bed of the Connecticut, the course of that river is extended The deepest channel of a river. farther than it would be if a preference were given to either of the other three rivers; "Lastly, that the Map A having been recognized by the Convention of 1827 as indicating the courses of streams, the authority of that map would likewise seem to extend to their appellation, since in case of dispute such name of riveror lake, respecting which the parties were not agreed, might have been omitted; that said map mentions Connecticut Lake, and that the name of Connecticut Lake implies the applicability of the name of Connecticut to the river which flows through the said lake: "WE ARE OF OPINION: "That the stream situated farthest to the northwest among those which fall into the northernmost of the three Lakes, the last of which bears the name of Connecticut Lake, must be considered as the northwesternmost head of Connecticut river. "And as to the third point, to wit: the question, What is the boundary to be traced from the river Connecticut, along the parallel of the 45th degree of north latitude, to the river St. Lawrence, named in the Treaties Iroquois or Cataraguy: "CONSIDERING: "That the High Interested Parties differ in opinion as to the question-Whether the Treaties require a fresh survey of the whole line of boundary from the river Connecticut to the river St. Lawrence, named in the Treaties Iroquois or Cataraquy, or simply the completion of the ancient provincial surveys: "CONSIDERING: "That the fifth article of the Treaty of Ghent of 1814 does not stipulate that such portion of the boundaries as may not have hitherto been surveyed, shall be surveyed; but declares that the boundaries have not been, and establishes that they shall be, surveyed: "That, in effect, such survey ought, in the relations between the two Powers, to be considered as not having been made from the Connecticut to the river St. Lawrence, named in the Treaties Iroquois or Cataraquy, since the ancient survey was found to be incorrect, and had been ordered, not by a common accord of the two Powers, but by the ancient provincial authorities: "That in determining the latitude of places it is customary to follow the principle of the observed latitude; "And that the Government of the United States of America has erected certain fortifications at the place called Rouse's Point, under the impression that the ground formed part of their territory-an impression sufficiently authorized by the circumstance that the line had, until then, been reputed to correspond with the 45th degree of north latitude: "WE ARE OF OPINION: "That it will be suitable to proceed to fresh operations to measure the observed latitude in order to mark out the boundary from the river Connecticut along the parallel of the 45th degree of north latitude to the river St. Lawrence, named in the Treaties Iroquois or Cataraquy, in such manner however that, in all cases, at the place called Rouse's Point, the territory of the United States of America shall extend to the fort erected at that place, and shall include said fort and its Kilometrical radius (rayon Kilometrique.) "Thus done and given under our Royal Seal, at the Hague, this tenth day of January, in the year of our Lord one thousand eight hundred and thirty-one, and of our Reign the eighteenth. “ WILLIAM. "VERSTOLK VAN SOELEN, "The Minister of Foreign Affairs.” 66 Analyzing this award, we find that as to the Analysis of Award. line from the northwest angle of Nova Scotia to the northwesternmost head of Connecticut River, the arbitrator held (1) that the term "highlands" was applicable to ground which, without being mountainous or hilly, divided rivers flowing in opposite directions; but (2) that it was not shown that the boundaries described in the treaty of 1783 coincided with the ancient limits of the British provinces; and (3) that neither the line of highlands claimed by the United States nor that claimed by Great Britain so nearly answered the requirements of the treaty of 1783 in respect to the division of rivers as to give a preference to the one over the other. Abandoning therefore the attempt to determine this part of the boundary according to the treaty of 1783, he recommended a line of convenience. As to the northwesternmost head of Connecticut River, he held that it was the stream farthest to the northwest among those that fall into the northwesternmost of the three lakes, the last of which bears the name of Connecticut Lake. As to the forty-fifth parallel of north latitude, the arbitrator held that it should be determined by the customary principle of observed latitude, without regard to prior surveys, but expressed the opinion that the United States should be left in the possession of the fort at Rouses Point. Estimating the disputed territory to contain an area of 12,027 square miles, or 7,697,280 acres, the award of the arbitrator gave to the United States 7,908 square miles, or 5,061,120 acres, and to Great Britain 4,119 square miles, or 2,636,160 acres. Award; Protest of On the 12th of January 1831 Mr. Preble, Recommendatory who was then envoy extraordinary and minCharacter of ister plenipotentiary of the United States at The Hague, addressed to the minister for foreign affairs a note respectfully protesting against the award, and reserving the rights and interests of the United States, on the ground that the proceedings of the arbitrator constituted a departure from his powers. The question where the boundary should run, said Mr. Preble, if the treaty of 1783 could not be executed, was one which, he believed, the United States would submit to no sovereign. As to the opinion of the arbitrator that the ranges of highlands respectively claimed by the United States and Great Britain comported equally well in all respects with the language of the treaty, Mr. Preble said he did not intend to question its correctness. But when the arbitrator proceeded to say that it would be suitable to run the line due north from the source of the River St. Croix, not "to the highlands which divide the rivers that fall into Atlantic Ocean from those which fall into the river St. Lawrence," but to the center of the River St. John, thence to pass up that river to the mouth of the River St. Francis, thence up the River St. Francis to the source of its southwesternmost branch, and from thence by a line due west to the highlands claimed by the United States, and only from that point along the highlands de scribed in the treaty, thus abandoning the boundaries of the treaty and substituting for them a different line, Mr. Preble said it became his duty, "with the most perfect respect for the friendly views of the Arbiter, to enter a Protest against the proceeding, as constituting a departure from the powers delegated by the High Interested Parties, in order that the rights and interests of the United States may not be supposed to be committed by any presumed acquiescence on the part of their Representative near His Majesty, the King of the Netherlands."1 Mutual Waiver of The British Government, while perceiving that the award was recommendatory rather than decisive, expressed its acquiescence in it, but authorized its minister at Washington privately to S. Ex. Doc. 3, 22 Cong. 1 sess. |