concerning recaptures with their High Mightinesses the States General of the United Netherlands, the peace commissioners at Paris agreed on certain articles in the first of which the boundaries of the United States were defined in accordance with the American commissioners' claims-on the north by the highlands, from the northwest angle of Nova Scotia to the Connecticut River; from the Connecticut to the St. Lawrence, by the forty-fifth parallel of north latitude; from the St. Lawrence by a straight line to the south end of Lake Nepissing, and thence to the source of the Mississippi; and on the east by a line to be drawn along the middle of the St. John River from its source to its mouth in the Bay of Fundy. The following note, however, was added to the articles: "Alteration to be made in the treaty respecting the boundaries of Nova Scotia, viz: East, the true line between which and the United States shall be settled by commissioners as soon as conveniently may be after the war." Oswald sent the articles thus amended to his Court for approval. "He thinks they will be approved there," wrote Franklin, "but I have some doubts. In a few days, however, the answer expected will determine. By the first of these articles the King of Great Britain renounces for himself and successors all claim and pretension to dominion or territory within the thirteen United States; and the boundaries are described as in our instructions, except that the line between Nova Scotia and New England is to be settled by commissioners after peace."2 Franklin's augury proved to be correct. After several weeks the articles were returned by Mr. Strachey, an under secretary, who was evidently charged to correct Oswald's yielding disposition. By this time John Adams had arrived from the Netherlands and assumed the functions of a peace commissioner. On October 30 and the three following days the nego tiators held formal conferences, at which Oswald was assisted by Strachey and also by a Mr. Roberts, a clerk from the office. of trade and plantations, who endeavored to argue away the limits of Massachusetts.3 Adams was prepared to maintain the claim of Massachusetts to the St. Croix, but not beyond it, Wharton's Dip. Cor. Am. Rev. V. 806–808. Franklin to Livingston, Sec. of For. Aff., Oct. 14, 1782, Wharton's Dip. Cor. Am. Rev. V. 811. 3 Adams to Livingston, Sec. of For. Aff., Oct. 31, 1782, Wharton's Dip. Cor. Am. Rev. V. 839; Amory's Life of Sullivan, I. 311. believing that to be the true eastern boundary. On the 5th of November Strachey returned to England with new articles that had been agreed on.' In these articles the American commissioners, accepting the line described in the commission of Montague Wilmot, governor of Nova Scotia, in 1763, as the western limit of that province, agreed to take the St. Croix River and a line due north from its source as the eastern boundary, up to the point where it intersected the highlands dividing rivers falling into the Atlantic Ocean from those emptying themselves into the River St. Lawrence. From this point, which was designated as the northwest angle of Nova Scotia, the boundary followed the highlands down to the northwesternmost head of Connecticut River, and, proceeding down the middle thereof to the forty-fifth parallel of north latitude, followed that parallel to the Mississippi. It was, however, left optional with the British Government to substitute for the forty-fifth parallel in a part of its course a line through the middle of the Great Lakes. All the lines here referred to were marked on a map, and it was, says Fitzmaurice," "the loss of this map, with the line marked out as finally agreed upon, which led to the difficulties terminated in 1842 by the Ashburton Treaty"—the difficulties we are now discussing. To the "loss" of this map we shall advert hereafter. The British ministry, while not approving Conclusion of the the lines proposed for the boundaries, decided Treaty of Peace. to close the negotiations rather than, by delaying a settlement till after the assembling of Parliament, incur the risk of bringing before that body the various questions at issue, and especially that of compensation for the loyalists. They therefore dispatched Strachey to Paris with a new set of articles, in which the alternative offer of a line through the middle of the Great Lakes was adopted, the rest Wharton's Dip. Cor. Am. Rev. V. 815, 851-852; VI. 112. 2 Wharton's Dip. Cor. Am. Rev. V. 851. 3 Adams to Livingston, Sec. of For. Aff., November 6, 1782, Wharton's Dip. Cor. Am. Rev. V. 856. See, also, Id. 872-873, 875–876, 878; VI. 47; Fitzmaurice's Life of Shelburne, III. 294. "I despatch," wrote Strachey to the British ministers, “the boundary line originally sent to you by Mr. Oswald and two other lines proposed by the American Commissioners after my arrival at Paris. Either of these you are to choose. They are both better than the original line, as well in respect to Canada, as to Nova Scotia." (Fitzmaurice's Life of Shelburne, III. 294–295.) 4Life of Shelburne, III. 295. 5 Wharton's Dip. Cor. Am. Rev. VI. 72. of the boundaries remaining as previously settled at Paris. The new articles, which were communicated by Oswald to the American commissioners at a conference on the 25th of November, ended the discussion as to boundaries. The article on that subject was embodied as Article II. in the provisional articles of peace which were signed November 30, 1782, and which were made definitive September 3, 1783.2 Erection of Province of New Brunswick. In 1784 the British Crown took from Nova Scotia that part of its territory which has since formed the province of New Brunswick. In the commission of Thomas Carleton as captain-general and governor-in-chief of New Brunswick of August 16, 1784, the new province is "bounded on the westward by the mouth of the River Saint Croix by the said River to its source and by a line drawn due north from thence to the southern boundary of our province of Quebec to the northward by the said boundary as far as the western extremity of the Bay des Chaleurs." The same language is employed in commissions to Carleton's successors in 1807, 1811, 1816, 1818, and 1819. Division of Province of Quebec. By the act of 31 Geo. III. cap. 31 (1791), and the order in council of August 24, 1791, the province of Quebec was divided into Upper and Lower Canada, the latter retaining so far as it extended the southern limits of the province out of which it was formed. Such is an outline of the history of the boundaries in regard to which the King of the Netherlands was called upon to render a decision. American Statement before the Arbitrator. In the American statement laid before the arbitrator the case was treated under three heads: 1. The northwest angle of Nova Scotia and the highlands. 2. The northwesternmost head of Connecticut River. 3. The boundary line from the Connecticut River, along the forty-fifth parallel of north latitude, to the River St. Lawrence, called in the treaties Iroquois or Cataraquy. Question of the As to the first question, it was declared that the fundamental point was the highlands. It was there that the northwest angle of Nova Scotia must be found. It must be formed by the intersection Wharton's Dip. Cor. Am. Rev. VI. 72, 71. 2Adams, Franklin, and Jay to Livingston, Sec. of For. Aff., Dec. 14, 1782, Wharton's Dip. Cor. Am. Rev. VI. 131-133. of the lines constituting the northern and western boundaries of Nova Scotia. The highlands contemplated by the treaty were highlands which, at a point due north from the source of the River St. Croix, divided rivers falling into the Atlantic Ocean from those emptying into the River St. Lawrence; highlands extending eastwardly from that point (the northwest angle of Nova Scotia), and continuing for some distance in that direction to divide waters in the same manner, so as to form there the northern boundary of Nova Scotia; highlands extending, also, southwestwardly from the same point, and dividing rivers in the same manners all the way to the northwesternmost head of Connecticut River. In the treaty the term "highlands" and the words "highlands which divide the rivers" were inseparable. Avoiding the words mountains, hills, or other terms which might have referred to the peculiar nature of the ground, the treaty used the general expression highlands as applicable to any ground along which the line dividing the rivers should be found to pass. The mere fact that such ground was necessarily more elevated than the rivers and the country adjacent to their banks entitled it to the designation of highlands. Northwest Angle of There were only two places, said the American statement, on the line due north from the source of the St. Croix which divided rivers thus falling in different directions, and in which those rivers had their respective sources. About 97 miles from the source of the St. Croix the due-north line reached a ridge or highland which divided the tributary streams of the River St. John, which falls into the Bay of Fundy, from the waters of the River Restigouche, which falls through the Bay of Chaleurs into the Gulf of St. Lawrence. In its farther north course the same line, after crossing several upper branches of the Restigouche, reached, at a distance of about 144 miles from the source of the St. Croix, the highlands which divide the waters of the Restigouche from the tributary streams of the River Metis, which falls into the River St. Lawrence. There was, declared the American statement, no possible choice but between these two places. The northwest angle of Nova Scotia must of necessity be found at one or the other. "Atlantic Term Ocean." The selection between these two places evidently depended, said the American statement, upon what the treaty meant by rivers that empty themselves into the River St. Lawrence and by rivers that fall into the Atlantic Ocean. The first class embraced only the rivers flowing into a specially designated river, and obviously could not be so construed as to include any rivers that did not empty themselves into the river thus designated. It must be inferred that all the rivers met by the due-north line which did not actually empty themselves into the River St. Lawrence were by the treaty considered as falling into the Atlantic Ocean. This conclusion, said the American statement, perfectly accorded with what was generally understood by the term "Atlantic Ocean." The term "sea" in its general sense embraced the whole body of salt waters. Its great subdivisions were designated by the names Atlantic Ocean, Pacific Ocean, etc. Each of them generically embraced all the bays, gulfs, and inlets formed by the indentures of its shores or by adjacent islands. In the case under consideration not only was the generic appellation "Atlantic Ocean" contrasted with the River St. Lawrence alone, but every river which could have been contemplated by the framers of the treaty as falling into the Atlantic Ocean fell into it through some intermediate gulf or bay known-and in Mitchell's map specifically designated by a distinct name; as, for example, the River Restigouche, through the Bay of Chaleurs and the Gulf of St. Lawrence; the River St. John, through the Bay of Fundy; the rivers Magaguadavic and Schoodiac, through the Bay of Passamaquoddy and the Bay of Fundy; the Penobscot, through the bay of the same name; the Kennebec, through the Sagadahock Bay; and the Connecticut River, through Long Island Sound. So that if the rivers which fell into the Atlantic Ocean through a gulf, bay, or inlet known by a distinct name were not under the treaty of 1783 rivers falling into the Atlantic Ocean, there was not a single one that could have been contemplated by the treaty to which the description applied. The mention of the Gulf of St. Lawrence once by its special name in another portion of the treaty relating to the fisheries could not narrow the meaning of the words "rivers falling into the Atlantic Ocean." The northwest angle of Nova Scotia was therefore formed by and determined to be at the intersection of the line drawn due north from the source of the River St. Croix with the highlands dividing the tributary streams of the Restigouche, which falls into the Atlantic Ocean, from the tributary streams of a river emptying itself |