American Definitive Statement. Both governments presented second or definitive statements to the arbitrator. The first question at issue between the two governments was, said the American definitive statement, whether the highlands described in the treaty as dividing rivers emptying themselves into the River St. Lawrence from those falling into the Atlantic Ocean actually need not, as the British contention implied, for three-fifths of their extent divide the rivers that were specified. In order to support this extraordinary pretension it was incumbent on Great Britain, before she assumed to search for the intentions of the negotiators, to show that the terms of the treaty were susceptible of the meaning which she ascribed to them. This she had not attempted, but she had appealed from the letter of the treaty to what was improperly called its spirit. Even admitting that there was some foundation for her position in regard to the terms "Atlantic Ocean" and "highlands," the line claimed by her would still fail to answer the requirements expressly prescribed by the treaty. Inadmissibility of of 1783. The British statement had declared that, Design of the Treaty there being in 1782-83 no certain and acknowledged boundary between Canada and Quebec, no man knew where the northwest angle of Nova Scotia really was, and that the negotiators therefore proceeded by other modes to express their governments' intention, which was to give to each power entire possession of the rivers having their mouths within its territory. There were, however, said the American definitive statement, at the time of the treaty certain and acknowledged boundaries between Canada and Nova Scotia, and, though the precise spot where the northwest angle of Nova Scotia would be found was not known, it was supposed that all that would be necessary to ascertain it was the mere operation of surveying. The alleged intention of the negotiators was disproved not only by the fact that they established the boundary on specific points, but also by the circumstance that various parts of the boundary, such as the forty-fifth parallel, intersected streams and lakes, thus dividing them between the two countries. All the inconveniences ascribed to such a division of the St. John applied with increased force to the River St. Lawrence and the extensive 5627- -8 countries situated on its waters. In fact, the due north line from the source of the St. Croix crossed no less than three tributary streams of the St. John before it reached Mars Hill. As to the term "Atlantic Ocean," the AmerTerm "Atlantic ican definitive statement argued at length Ocean." that the words "rivers which fall into the Atlantic Ocean" embraced rivers falling into that ocean through either of i's two inlets, the Bay of Fundy and the Gulf of St. Lawrence, both according to the usual sense of geography, according to common language, and according to official documents. As to the description of the St. Croix in the treaty as having its mouth in the Bay of Fundy, to which the British statement adverted, the American definitive statement maintained, on the strength of various British documents, that the argument was groundless, the terms "Atlantic Ocean," "Atlantic Sea," "Western Ocean," or "Western Sea" having been used in such documents so as to embrace bodies of water in America bearing distinct names, such as Massachusetts Bay, the Bay of Fundy, and the Gulf of St. Lawrence. In describing the St. Croix the treaty of 1783 had simply adhered to the description found in the grant to Sir William Alexander and in the commissions of the governors of the province, from the language of which it was not advisable to depart. As to the intentions of the negotiators of 1782-83, the American definitive statement found in the original proposition of the American commissioners conclusive proof that the St. John, though it was therein mentioned as having its mouth in the Bay of Fundy, was classed with the rivers falling into the Atlantic Ocean. In that proposition the boundary was formed on the north "by a line to be drawn from the northwest angle of Nova Scotia along the highlands which divide those rivers which empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean," 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." Obviously the only Atlantic river turned by the highlands at the source of the St. John was the St. John itself. As to the highlands, the American definiTerm "Highlands." tive statement maintained that the supposition in the British statement that the name "height of land" given to a portion of the highlands dividing the waters of the Connecticut and Kennebec from those of the St. Lawrence was an appellation peculiarly applicable to that portion was altogether erroneous. The only colorable authority for the supposition was that of Governor Pownall, who used the terms "height of land" and "highland" synonymously, as generic expressions, descriptive of ground separating the sources of rivers.1 In every British act designating the southern boundary of the province of Quebec, or of Lower Canada, it was described as being along "the highlands which divide," etc.; yet the committee of the executive council of Quebec, in a report of 1787, spoke of it as "the height of land." As to the fief of Madawaska, the AmeriFief of Madawaska. can definitive statement denied that a grant to a French subject by a French governor of Canada could affect the limits of the United States founded on the charter of Massachusetts Bay. It was notorious that France, at the time of the British conquest of Canada, claimed the whole of the country watered by the River St. John and its tributary streams as a part of New France, and doubtless many French grants were made below the southern boundary of the British province of Canada. How far these grants were respected was best known to Great Britain. The fact that the last French possessor of the fief of Madawaska had the sagacity to dispose of his claim, just after the conquest, to the first British governor of Quebec probably was the reason why this solitary grant had escaped the general wreck of French concessions in that quarter. But, though the grant was held by a feudal tenure, it did not appear that the British purchasers had ever performed any of the conditions pertaining to such tenure in relation to the government of Quebec or of Lower Canada. No acts of jurisdiction appeared to have been exercised over the fief by either of those governments. In reality, the only basis of the claim of acts of jurisdiction was the fact that certain transfers or leases relating to the fief between British subjects were recorded in an office in Quebec, in which it was shown that French concessions known to be without the boundaries of the province had also been admitted to record. 1 Examples were quoted from Pownall's Middle British American Colonies, published in 1776, pp. 10, 13, 17, etc. Extracts are also made from McKenzie's History of the Fur Trade, published in 1802, pp. 28, 32, 35, 40, etc. Madawaska Settle ment. The Madawaska settlement, which was claimed in the British statement as being actually under British jurisdiction, afforded, said the American definitive statement, no evidence of an intention on the part of the government of New Brunswick prior to the Treaty of Ghent to extend its jurisdiction over the contested territory. The French settlers who made it at first established themselves farther down the St. John. When the British, after the Treaty of 1783, extended their settlements up that river the French settlers removed upward to the mouth of the Madawaska. At that time the true St. Croix was undetermined and the situation of the due-north line was unknown. It was only since the survey of the line in 1817-18 that the exercise of jurisdiction by New Brunswick had been complained of. From 1794 to 1814 that government had granted no land in the contested territory to any one. The British agent under Article V. of the Jay Treaty, who was a distinguished inhabitant and public officer of New Brunswick, admitted in his argument that the due-north line must cross the St. John, an admission which, as agent under Article V. of the Treaty of Ghent, he sought to explain away. The pretension of Great Britain to the contested territory was first made known to the United States at Ghent, when the British plenipotentiaries proposed to vary the boundary so as to secure to Great Britain a direct communication between Quebec and Halifax. The American definitive statement closed with brief discussions of the questions as to the northwesternmost head of Connecticut River and the forty-fifth parallel of north latitude. Second British State ment. the British case. The second or definitive British statement did not follow the controversial form, but in the main presented a supplementary view of Taking up, as first in order, the question of Intention of the the northwest angle of Nova Scotia, the second Treaty of 1783. British statement observed that the claims of the two governments involved a difference of 105 miles on a due-north line and a tract of territory 10,705 square miles in extent. Both parties agreed that, in order to determine the true situation of the point of departure, the highlands intended by the treaty must first be determined. When the peace was concluded a considerable part of the frontier territory was altogether unknown, or at best imperfectly explored. It was impossible for the negotiators of 1783 to describe the boundary throughout its whole extent in such terms as to leave no room for hesitation or dispute, but it was not impossible to show what was the intention of the treaty. The intention of the treaty was: (1) To define exclusively the limits of the United States; (2) to define them peremptorily; (3) to define them in such manner as to promote the "reciprocal advantage and mutual convenience" of both countries. Such being the motives of the contracting parties, it was inconceivable that the British Government could have intended to carry the boundary line to the north of the River St. John, thus incurring not merely the loss of a certain number of square miles, but the surrender of direct communication between Nova Scotia and Canada to the United States. The American statement seemed to recognize the justice of leaving to each party its rivers. This was a principle of the utmost importance, and it could be preserved only by establishing the highlands south of the River St. John. With respect to the question of highlands, it sufficed to quote, as to Mars Hill, the statement of the American surveyor that the south peak was "175 feet higher than the north peak, and about 1,000 feet above the general level of the adjacent country." This description was decisive. of the superior height of Mars Hill. The question of the northwest angle of Nova Scotia was subordinate to that of the highlands. The place of that angle was unknown in 1783. The charter of Massachusetts, as the United States interpreted it, would fix it on the right bank of the St. Lawrence. The proclamation of 1763, and the Quebec Act, as interpreted by the United States, would place it on certain highlands south of the rivers that fall into the St. Lawrence. The first proposal of the American negotiators at Paris would place it at the source of the River St. John. The fact was that the northwest angle of Nova Scotia was yet to be formed, and this had been admitted by high American authority. According to the American statement, said Ancient Boundaries. the second British statement, the line due north from the source of the River St. Croix extended 144 miles north of that point. It intersected the main channel of the St. John and several other streams, and terminated at a place destitute of any marked elevation between one of the branches of the Restigouche and the source of a stream falling into the St. Lawrence, and presumed to be the |