A Compilation of the Messages and Papers of the Presidents. Volume 4, part 2: John Tyler

by Unknown

The Congress of 1779 and the framers of the treaty of 1783 were therefore warranted in speaking of the northwest angle of Nova Scotia as if it were a known point. It could have been laid down with precision on any good map; it could be discovered by the use of adequate methods and the expenditure of a sufficient appropriation; it was, in fact, as well known as the forty-fifth and thirty-second parallels of latitude, which are named in the same article of the treaty, or as the boundaries of very many of the States which had united in the Confederation. These were defined by the course and sources of rivers—by parallels of latitude and circles of longitude, either of indefinite extent or setting out from some prescribed point whose position was to be determined. At the time of making these grants, as in the case before us, many of the boundaries had never been visited by civilized men. Some of these lines had, indeed, been sought and traced upon the ground in pursuance of orders from the privy council of Great Britain or the high court of chancery, and the recollection of the operation was fresh in the memory of both parties. Thus in 1750 it was ordered by the latter tribunal that the boundary on the lower counties on the Delaware (now the State of that name) and the Province of Maryland should be marked out. The boundary was an arc of a circle described around the town of Newcastle, with a given radius, and a meridian line tangent thereto. This was a far more difficult operation than to draw a meridian line from a given point, such as the source of a river. It was thought in 1763 worthy of the attention of the first assistant in the Royal Observatory at Greenwich, and the American Rittenhouse was associated with him. This operation was not only of great contemporary fame, but is still quoted in English books among the data whence we derive our knowledge of the magnitude and figure of the earth. So also the same astronomer (Mason) had but a few years before the War of Independence commenced the tracing of a parallel of latitude from the former line to the westward, thus marking the respective limits of Pennsylvania, Maryland, and Virginia. With such examples before them the framers of the treaty of 1783 were warranted in considering the northwest angle of Nova Scotia as a point sufficiently definite to be made not merely one of the landmarks of the new nation, but the corner at which the description of its boundaries should begin. It has been well remarked by one of the commentators[52] on the report of Messrs. Featherstonhaugh and Mudge that if the treaty of 1783 be a grant the grantors are bound by rule of law to mark out that corner of their own land whence the description of the grant commences. The British Government therefore ought, if it be, as it is maintained on its part, a grant, to have traced the line of highlands dividing their Provinces of Nova Scotia and Canada. Had this been done in conformity with the proclamation of 1763 and the commission to Governor Wilmot, the northwest angle of Nova Scotia would be given by the trace of the meridian of the St. Croix. So far from doing this, the question has been complicated by the denial that the boundaries defined in that proclamation and in the treaty of 1783 were intended to be identical. The argument on this point was so ingenious that the arbiter under the fifth article of the treaty of Ghent did not consider the American case as made out,[53] and this doubt was the principal ground on which his decision rested. It is therefore an earnest of a more favorable state of feeling that the sophistry with which this fact had been veiled, at least in part, is now withdrawn, and that the commission whose report is under consideration frankly admit this identity.[54] This admission being made, it is obvious that the origin of the highlands of the treaty must be sought on the north shore of the Bay des Chaleurs and at its western extremity, and it follows that the point where this line of highlands is cut by the meridian of the monument at the source of the St. Croix is the northwest angle of Nova Scotia of the treaty of 1783, and must lie to the north of the Restigouche, or in the very spot claimed by the United States.

The British Government has not only failed in marking out the corner of their territory at which the boundary of the United States begins, but has in practice adopted a very different point as the northwest angle of the Province of New Brunswick, which now occupies the place of ancient Nova Scotia in its contiguity to the American lines. Up to the time of the discussion before the King of the Netherlands the commissions of the governors of New Brunswick had been, so far as the western and northern boundaries are concerned, copies of that to Governor Wilmot. The undersigned have no means of ascertaining when or how the form of these commissions was changed, but it was found during the exploration of the country that the jurisdiction of New Brunswick, limited at least to the north of the St. John by the exploring meridian line, did not leave the Bay of Chaleurs at its western extremity and follow thence the old bounds of the Province of Quebec. It, on the contrary, was ascertained that it was limited by the Restigouche as far as the confluence of its southwestern branch, formerly known by the name of Chacodi, and thence followed the latter up to the point where it is crossed by the exploring meridian line. On all the territory thus severed from the ancient domain of Nova Scotia permits to cut timber were found to have been issued by Canadian authorities, and the few settlers derived their titles to land from the same source.

Although this demarcation involves a double deviation from the proclamation of 1763 (first, in following a river instead of highlands; second, in taking a small branch instead of pursuing the main supply of the Bay of Chaleurs), the northwest angle of Nova Scotia may be considered as at last fixed by British authority at a point many miles north of the point claimed to be such in the statements laid before the King of the Netherlands on the part of Great Britain, and 48 miles to the north of where the line of "abraded highlands" of Messrs. Featherstonhaugh and Mudge crosses the St. John. Were it not that the American claim would be weakened by any change in the strong ground on which it has always rested, it might be granted that this is in fact the long-lost northwest angle of Nova Scotia, and the highlands allowed to be traced from that point through the sources of the branches of the St. John and the St. Lawrence.

In proof of the position now assigned to this angle of New Brunswick, and consequently of ancient Nova Scotia, in the absence of documents which the archives of Great Britain alone can furnish, the map published by the Society for the Encouragement of Useful Knowledge, the several maps of the surveyor-general of the Province of Canada, and the most recent map of the Provinces of Nova Scotia and New Brunswick, by John Wyld, geographer to the Queen of Great Britain, may be cited.

It may therefore be concluded that the northwest angle of Nova Scotia is no longer an unknown point. It can be found by a search conducted in compliance with the proclamation of 1763 and the contemporaneous commission of Governor Wilmot, and the researches of the present commission show that it can not be far distant from the point originally assigned to it in the exploring meridian line. The identity of the first of these documents with the boundary of the treaty of 1783 is admitted, and the latter is word for word the same with the description of the eastern boundary of the United States in the same treaty. Moreover, a northwest angle has been assigned to the Province of New Brunswick by British authority, which, did it involve no dereliction of principle, might without sensible loss be accepted on the part of the United States.

IV.—HIGHLANDS OF THE TREATY OF 1783.

The highlands of the treaty of 1783 are described as those "which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean." It has been uniformly and consistently maintained on the part of the United States that by the term "highlands" was intended what is in another form of the same words called the height of land. The line of highlands in this sense was to be sought by following the rivers described in the treaty to their source and drawing lines between these sources in such manner as to divide the surface waters. It was believed that the sources of such rivers as the Connecticut and the St. John must lie in a country sufficiently elevated to be entitled to the epithet of highlands, although it should appear on reaching it that it had the appearance of a plain. Nay, it was even concluded, although, as now appears, incorrectly—and it was not feared that the conclusion would weaken the American argument—that the line from the northwest angle of Nova Scotia, at least as far as the sources of Tuladi, did pass through a country of that description. Opposite ground was taken in the argument of Great Britain by her agent, but however acute and ingenious were the processes of reasoning by which this argument was supported, it remained in his hands without application, for the line claimed by him on the part of his Government was one having the same physical basis for its delineation as that claimed by the agent of the United States, namely, one joining the culminating points of the valleys in which streams running in opposite directions took their rise. The argument appears to have been drawn while he hoped to be able to include Katahdin and the other great mountains in that neighborhood in his claimed boundary, and he does not appear to have become aware how inapplicable it was in every sense to the line by which he was, for want of a better, compelled to abide. The British Government, however, virtually abandoned the construction of their agent in the convention signed in London the 27th September, 1827.[55]

In this it was stipulated that Mitchell's and Map A should be admitted to the exclusion of all others "as the only maps that shall be considered as evidence" of the topography of the country, and in the latter of these maps, constructed under the joint direction of the British and American negotiators by the astronomer of the British Government, it was agreed that nothing but the water courses should be represented. Finally, it was admitted in the report of Messrs. Featherstonhaugh and Mudge that the terms highlands and height of land are identical. The decision of the King of the Netherlands, to which Great Britain gave her assent in the first instance, recognizes the correctness of the views entertained in the American statements.[56] All discussion on this subject is, however, rendered unnecessary by the knowledge which the undersigned have obtained of the country. The line surveyed by them not only divides rivers, but possesses in a preeminent degree the character by which in the British argument highlands are required to be distinguished.

It is sufficient for the present argument that the identity of the lines pointed out by the proclamation of 1763 and the act of 1774 with the boundary of the treaty of 1783 be admitted. Such has been the uniform claim of the Government of the United States and the State of Massachusetts, and such is the deliberate verdict of the British commissioners.[57] The words of the proclamation of 1763 have already been cited. By reference to them it will be seen that the origin of "the highlands" is to be sought on the north shore of the Bay of Chaleurs. If they are not to be found there, a gap exists in the boundary of the proclamation, which it is evident could not have been intended. It has been thought by some that the gap did actually exist, but this idea was founded on an imperfect knowledge of the country. The Bay of Chaleurs seems, in fact, to have been better known to the framers of the proclamation of 1763 and the act of 1774 than to any subsequent authorities, whether British or American. Researches made in the year 1840 show that at the head of the tide of the Bay of Chaleurs a mountain rises immediately on the northern bank, which from its imposing appearance has been called by the Scotch settlers at its foot Ben Lomond. This, indeed, has by measurement been found to be no more than 1,024 feet in height, but no one can deny its title to the name of a highland. From this a continuous chain of heights has been ascertained to exist, bounding in the first instance the valley of the Matapediac to the sources of that stream, which they separate from those of the Metis. The height of land then passes between the waters of Metis and Restigouche, and, bending around the sources of the latter to the sources of the Rimouski, begins there to separate waters which fall into the St. Lawrence from those which fall into the St. John, which they continue to do as far as the point where they merge in the line admitted by both parties.

These highlands have all the characteristics necessary to constitute them the highlands of the treaty. Throughout their whole northern and western slopes flow streams which empty themselves into the St. Lawrence. Beginning at the Bay of Chaleurs, they in the first place divide, as it is necessary they should, waters which fall into that bay; they next separate the waters of Restigouche from those of Metis; they then make a great detour to the south and inclose the valley of Rimouski, separating its waters from those of Matapediac and Restigouche, the Green River of St. John and Tuladi; they next perform a circuit around Lake Temiscouata, separating its basin from those of the Otty and Trois Pistoles, until they reach the Temiscouata portage at Mount Paradis. This portage they cross five times, and finally, bending backward to the north, inclose the stream of the St. Francis, whose waters they divide from those of Trois Pistoles, Du Loup, and the Green River of the St. Lawrence. Leaving the Temiscouata portage at the sixteenth milepost, a region positively mountainous is entered, which character continues to the sources of the Etchemin. It there assumes for a short space the character of a rolling country, no point in which, however, is less than 1,200 feet above the level of the sea. It speedily resumes a mountainous character, which continues unaltered to the sources of the Connecticut.