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

by Unknown

Declaration of the commissioners under the fifth article of the treaty of 1794 between the United States and Great Britain, respecting the true river St. Croix, by Thomas Barclay, David Howell, and Egbert Benson, commissioners appointed in pursuance of the fifth article of the treaty of amity, commerce, and navigation between His Britannic Majesty and the United States of America finally to decide the question "What river was truly intended under the name of the river St. Croix mentioned in the treaty of peace between His Majesty and the United States, and forming a part of the boundary therein described?"

DECLARATION.

We, the said commissioners, having been sworn impartially to examine and decide the said question according to such evidence as should respectively be laid before us on the part of the British Government and of the United States, respectively, appointed and authorized to manage the business on behalf of the respective Governments, have decided, and hereby do decide, the river hereinafter particularly described and mentioned to be the river truly intended under the name of the river St. Croix in the said treaty of peace, and forming a part of the boundary therein described; that is to say, the mouth of the said river is in Passamaquoddy Bay at a point of land called Joes Point, about 1 mile northward from the northern part of St. Andrews Island, and in the latitude of 45° 5' and 5" north, and in the longitude of 67° 12' and 30" west from the Royal Observatory at Greenwich, in Great Britain, and 3° 54' and 15" east from Harvard College, in the University of Cambridge, in the State of Massachusetts; and the course of the said river up from its said mouth is northerly to a point of land called the Devils Head; then, turning the said point, is westerly to where it divides into two streams, the one coming from the westward and the other from the northward, having the Indian name of Cheputnatecook, or Chebuitcook, as the same may be variously spelt; then up the said stream so coming from the northward to its source, which is at a stake near a yellow-birch tree hooped with iron and marked S.T. and J.H., 1797, by Samuel Titcomb and John Harris, the surveyors employed to survey the above-mentioned stream coming from the northward.

Note III.

[Article V of the treaty of Ghent, 1814.]

Whereas neither that point of the highlands lying due north from the source of the river St. Croix, and designated in the former treaty of peace between the two powers as the northwest angle of Nova Scotia, nor the northwesternmost head of Connecticut River has 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 northwest 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 northwesternmost head of Connecticut River; thence down along the middle of that river to the forty-fifth degree of north latitude; thence by a line due west on said latitude until it strikes the river Iroquois, or Cataraquy, has not yet been surveyed, it is agreed that for these several purposes two commissioners shall be appointed, sworn, and authorized 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 commissioners 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 determine 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 Cataraquy, to be surveyed and marked according to the said provisions. The said commissioners shall make a map of the said boundary, and annex to it a declaration under their hands and seals certifying it to be the true map of the said boundary, and particularizing the latitude and longitude of the northwest angle of Nova Scotia, of the northwesternmost head of Connecticut River, and of such other points of the said boundary as they may deem proper; and both parties agree to consider such map and declaration 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 willfully 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.

Note IV.

The point originally chosen by the commissioners in 1798 as the source of the St. Croix was to all appearance the act of an umpire who wished to reconcile two contending claims by giving to each party about half the matter in dispute. No one who compares Mitchell's map with that of Messrs. Featherstonhaugh and Mudge can fail to recognize in the St. Croix of the former the Magaguadavic of the latter. That this was the St. Croix intended by the framers of the treaty of 1783 was maintained, and, it may be safely asserted, proved on the American side. On the other hand, it was ascertained that the river called St. Croix by De Monts was the Schoodiac; and the agent of Great Britain insisted that the letter of the instrument was to be received as the only evidence, no matter what might have been the intentions of the framers. The American argument rested on the equity of the case, the British on the strict legal interpretation of the document. The commissioners were divided in opinion, each espousing the cause of his country. In this position of things the umpire provided for in the treaty of 1794 was chosen, and in the United States it has always been believed unfortunately for her pretensions. A lawyer of eminence, who had reached the seat of a judge, first of a State court and then of a tribunal of the General Government, he prided himself on his freedom from the influence of feeling in his decisions. As commissioner for the settlement of the boundary between the States of New York and Vermont, he had offended the former, of which he was a native, by admitting the claim of the latter in its full extent, and it was believed that he would rather encounter the odium of his fellow-citizens than run the risk of being charged with partiality toward them. Colonel Barclay, the British commissioner, who concurred in choosing him as umpire, had been his schoolfellow and youthful associate, and it is believed in the United States that he concurred in, if he did not prompt, the nomination from a knowledge of this feature of character. Had he, as is insinuated by Messrs. Featherstonhaugh and Mudge, been inclined to act with partiality toward his own country, he had most plausible grounds for giving a verdict in her favor, and that he did not found his decisions upon them is evidence of a determination to be impartial, which his countrymen have said was manifested in a leaning to the opposite side. Those who suspect him of being biased by improper motives must either be ignorant of the circumstances of the case or else incapable of estimating the purity of the character of Egbert Benson. His award, however, has nothing to do with the question, as it was never acted upon. Both parties were dissatisfied with the conclusions at which he arrived, and in consequence a conventional line in which both concurred was agreed upon, and the award of the commissioners was no more than a formal act to make this convention binding.

If, then, both Governments should think it expedient to unsettle the vested rights which have arisen out of the award of 1798, there is a strong and plausible ground on which the United States may claim the Magaguadavic as their boundary, and the meridian line of its source will throw the valley of the St. John from Woodstock to the Grand Falls within the limits of the State of Maine. While, therefore, it is maintained that it would violate good faith to reopen the question, there is good reason to hope that an impartial umpire would decide it so as to give the United States the boundary formerly claimed.

Note V.