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

by Unknown

Now it is maintained that all the streams and waters which have been named as flowing from the southern and eastern sides of this line are in the intended sense of the treaty of 1783 rivers which empty themselves into the Atlantic. The first argument adduced in support of this position is that the framers of that treaty, having, as is admitted, Mitchell's map before them, speak only of two classes of rivers—those which discharge themselves into the St. Lawrence River and those which fall into the Atlantic Ocean; yet upon this map were distinctly seen the St. John and the Restigouche. The latter, indeed, figures twice—once as a tributary to the Bay of Miramichi and once as flowing to the Bay of Chaleurs.[58] It can not reasonably be pretended that men honestly engaged in framing an article to prevent "all disputes which might arise in future" should have intentionally passed over and left undefined these important rivers, when by the simplest phraseology they might have described them had they believed that in any future time a question could have arisen whether they were included in one or the other of the two classes of rivers they named. Had it been intended that the due north line should have stopped short of the St. John, the highlands must have been described as those which divide rivers which fall into the St. Lawrence and the St. John from those which fall into the Atlantic Ocean. The mouth of the St. Lawrence had been defined in the proclamation of 1763 by a line drawn from the river St. John (on the Labrador coast) to Cape Rozier. If, then, it had been intended that the meridian line should not have crossed the Restigouche, the phraseology must have been highlands which divide rivers which fall into the river and Gulf of St. Lawrence from those which fall into the Atlantic Ocean. Where such obvious modes of expressing either of these intentions existed, it is not to be believed that they would have been omitted; but had they been proposed to be introduced the American negotiators would have been compelled by their instructions to refuse them. Such expressions would have prescribed a boundary different not only in fact, but in terms, from that of the proclamation of 1763 and the contemporaneous commission to Governor Wilmot. Either, then, the British plenipotentiaries admitted the American claim to its utmost extent or they fraudulently assented to terms with the intention of founding upon them a claim to territory which if they had openly asked for must have been denied them. The character of the British ministry under whose directions that treaty was made forbids the belief of the latter having been intended. The members of that ministry had been when in opposition the constant advocates of an accommodation with the colonies or of an honorable peace after all hopes of retaining them in their allegiance had ceased. They showed on coming into power a laudable anxiety to put an end to the profitless effusion of human blood, and they wisely saw that it would be of more profit to their country to convert the new nation into friends by the free grant of terms which sooner or later must have been yielded than to widen the breach of kindred ties by an irritating delay. The debates which ensued in the British Parliament when the terms of the treaty were made known show the view which the party that had conducted the war entertained of this question. The giving up of the very territory now in dispute was one of the charges made by them against their successors, and that it had been given up by the treaty was not denied. Nay, the effect of this admission was such as to leave the administration in a minority in the House of Commons, and thus became at least one of the causes of the resignation of the ministry[59] by which the treaty had been made. At this very moment more maps than one were published in London which exhibit the construction then put upon the treaty by the British public. The boundary exhibited upon these maps is identical with that which the United States now claim and have always claimed.

The full avowal that the boundary of the treaty of 1783 and of the proclamation of 1763 and act of 1774 are identical greatly simplifies the second argument. It has been heretofore maintained on the part of Great Britain that the word "sea" of the two latter-named instruments was not changed in the first to "Atlantic Ocean" without an obvious meaning. All discussion on this point is obviated by the admission. But it is still maintained that the Bay of Fundy is not a part of the Atlantic Ocean because it happens to be named in reference to the St. Croix in the same article of the treaty. To show the extent to which such an argument, founded on a mere verbal quibble, may be carried, let it be supposed that at some future period two nations on the continent of North America shall agree on a boundary in the following terms: By a line drawn through the Mississippi from its mouth in the Gulf of Mexico to its source; thence a parallel of latitude until it meet the highlands which divide the waters that empty themselves into the Pacific Ocean from those which fall into the Atlantic. Could it be pretended that because the mouth of the Mississippi is said to be in the Gulf of Mexico the boundary must be transferred from the Rocky Mountains to the Alleghanies? Yet this would be as reasonable as the pretensions so long set up by the British agents and commissioners.

It can not be denied that the line claimed by the United States fulfills at least one of the conditions. The streams which flow from one side of it fall without exception into the river St. Lawrence. The adverse line claimed by Great Britain in the reference to the King of the Netherlands divides until within a few miles of Mars Hill waters which fall into the St. John from those of the Penobscot and Kennebec. The latter do not discharge their waters directly into the ocean, but Sagadahock and Penobscot bays intervene, and the former falls into the Bay of Fundy; hence, according to the argument in respect to the Bay of Fundy, this line fulfills neither condition.

The line of Messrs. Featherstonhaugh and Mudge is even less in conformity to the terms of the treaty. In order to find mountains to form a part of it they are compelled to go south of the source of branches of the Penobscot; thence from mountains long well known, at the sources of the Alleguash, well laid down on the rejected map of Mr. Johnson, it becomes entangled in the stream of the Aroostook, which it crosses more than once. In neither part does it divide waters at all. It then, as if to make its discrepancy with the line defined in the proclamation of 1763 apparent, crosses the St. John and extends to the south shore of the Bay of Chaleurs, although that instrument fixes the boundary of the Province of Quebec on the north shore of the bay. In this part of its course it divides waters which fall into the said bay from those which fall into the St. John. But the proclamation with whose terms this line is said to be identical directs that the highlands shall divide waters which fall into the St. Lawrence from those which fall into the sea. If the branches of the Bay of Chaleurs fulfill the first condition, which, however, is denied, the St. John must fulfill the latter. It therefore falls into the Atlantic Ocean, and as the identity of the boundary of the treaty with that of the proclamation of 1763 and act of 1774 is admitted, then is the St. John an Atlantic river, and the line claimed by the United States fulfills both conditions, and is the only line to the west of the meridian of the St. Croix which can possibly do so.

The choice of a line different from that presented to the choice of the King of the Netherlands is no new instance of the uncertainty which has affected all the forms in which Great Britain has urged her claim.

In fact, nothing shows more conclusively the weakness of the ground on which the British claim rests than the continual changes which it has been necessary to make in order to found any feasible argument upon it.[60] In the discussion of 1798 it was maintained on the part of Great Britain that the meridian line must cross the St. John River; in the argument before the commissioners under the fifth article of the treaty of Ghent it was denied that it ever could have been the intention of the framers of the treaty of 1783 that it should. Yet the mouthpiece by which both arguments were delivered was one and the same person. The same agent chose as the termination of what he attempted to represent as a continuous range of hills an isolated mountain, Mars Hill; and the commissioners whose report is under consideration place a range of abraded highlands, "the maximum axis of elevation," in a region over which British engineers have proposed to carry a railroad as the most level and lowest line which exists between St. Andrews and Quebec.[61]

On the other hand, the American claim, based on the only practicable interpretation of the treaty of 1783, has been consistent throughout: "Let the meridian line be extended until it meets the southern boundary of the Province of Quebec, as defined by the proclamation of 1763 and the act of Parliament of 1774."

No argument can be drawn against the American claim from the secret instructions of Congress dated August, 1779. All that is shown by these instructions is the willingness to accept a more convenient boundary—one defined by a great natural feature, and which would have rendered the difficult operation of tracing the line of highlands and that of determining the meridian of the St. Croix by astronomic methods unnecessary. The words of the instructions are:

"And east by a line to be drawn along the middle of the St. John from its source to its mouth in the Bay of Fundy, or by a line to be settled and adjusted between that part of the State of Massachusetts Bay formerly called the Province of Maine and the colony of Nova Scotia, agreeably to their respective rights, comprehending all islands within 20 leagues 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 part shall respectively touch the Bay of Fundy and the Atlantic Ocean."

The proposal in the first alternative was to appearance a perfectly fair one. From an estimate made by Dr. Tiarks, the astronomer of Great Britain under the fifth article of the treaty of Ghent, in conformity with directions from Colonel Barclay, the British commissioner, it was ascertained that the whole disputed territory contained 10,705 square miles; that the territory bounded by the St. John to its mouth contained 707 square miles less, or 9,998 square miles. The difference at the time was probably believed to be insensible. The first alternative was, however, rejected by Great Britain, and obviously on grounds connected with a difference in supposed advantage between the two propositions. The American commissioners were satisfied that they could urge no legal claim along the coast beyond the river St. Croix; they therefore treated on the other alternative in their instructions—the admitted limits between Massachusetts and Nova Scotia. Even in the former alternative, Nova Scotia would still have had a northwest angle, for the very use of the term shows that by the St. John its northwestern and not the southwestern branch was intended.