two rivers falling into the Atlantic Ocean. With respect to the highlands specified in the treaty, the source claimed by Great Britain was, said the American statement, the northeasternmost head of the river.

Forty-fifth Parallel of North Latitude.

As to the boundary westward from the Connecticut River to the St. Lawrence, the American statement said that by an order in council of July 20, 1764, the Connecticut River was declared to be the boundary between the provinces of New York and New Hampshire from the northern boundary of the province of Massachusetts Bay to the forty-fifth degree of north latitude. On August 12, 1768, this parallel was confirmed as the boundary between the provinces of New York and Quebec. Between the years 1771 and 1774 the line was surveyed and marked; it was completed in October 1774. It had ever since been the basis of jurisdiction and of grants of land, and at the time of the treaty of peace it was established and in full force. Nevertheless, the Treaty of Ghent declared that the boundary from the source of the St. Croix River to the River St. Lawrence had not been surveyed, and, according to the observations of the astronomers under that treaty, the forty-fifth parallel appeared to be about three-fourths of a mile south of the old line both on Connecticut River and Lake Champlain, though it coincided with that line on the River St. Lawrence. It was submitted whether it was not the true intention of the Treaty of Ghent that the boundary should be surveyed only where it had not already been run and marked, and whether the line formerly surveyed and established between the provinces of Quebec and New York was not, within the true intent and spirit of the same treaty, excepted from the provision which directed the boundary to be surveyed.

The British statement, like that of the British Statement be- United States, discussed the case under its three general heads:

fore the Arbitrator.

1. The northwest angle of Nova Scotia.

2. The northwesternmost head of Connecticut River.

3. The line to be drawn from the Connecticut River along the forty-fifth parallel of north latitude to the River St. Lawrence, called in the treaties Iroquois or Cataraquy.

Northwest Angle of
Nova Scotia.

Great Britain, it was said, "contends that the point thus described (as the northwest angle of Nova Scotia) is found at or near an elevation called Mars Hill, which is situated in a due-north line

drawn from the source of the St. Croix River and south of the River St. John; that the highlands intended by the treaty are those extending from that point to the Connecticut River; and that the rivers Penobscot, Kennebec, and Androscoggin are the rivers falling into the Atlantic Ocean which are intended by the treaty to be divided from the rivers which empty themselves into the river St. Lawrence."

Term Atlantic

Ocean."

The highlands claimed by the United States, said the British statement, at the point where they were intersected by a line due north from the source of the St. Croix, and for some distance westward, divided waters emptying into the River St. Lawrence from waters flowing into the Bay of Chaleurs and the Gulf of St. Lawrence, or else through the River St. John into the Bay of Fundy, while the highlands referred to in the treaty were said to divide waters flowing into the River St. Lawrence from those flowing into the "Atlantic Ocean." This was, said the British statement, "the cardinal point of the whole of this branch of difference." The highlands must divide waters flowing into

1

The origin of this point, which indeed was sure to be raised in any close and minute controversy on the subject, may be definitely traced. It was first raised under Article V. of the treaty of 1794. In a letter to Mr. Chipman, the British agent under that article, of November 9, 1796, Mr. Barclay, the British commissioner, said: "There is another point which I am endeavoring to ascertain, which if it turns out as I have reason to believe it will, must be decisive in our favor.- The line from the Source of the St. Croix you will recollect, is by the Treaty of Peace to run 'due North to the Highlands which divide those Rivers which fall into the Atlantic Ocean from those which fall into the Rirer St. Lawrence.' Now by an inspection of Capt. Sproules Map it appears to me, that a line drawn due North from the source even of the Cheputnaticook will strike the River Restigouche which runs into the Bay of Chaleurs, and of course falls into the Gulph of Saint Lawrence; such a line therefore will not answer the description of the Treaty, much less will a line drawn from the Source of the Magaguadavic or any other source eastward of the Source of the Cheputnaticook,but a line drawn due north from the Source of the Scoodiac will run to the westward of the sources of all the Rivers that fall into the Gulph of St. Lawrence, and will of course extend to the Highlands mentioned.—The idea was first hinted to me by Mr. Owen. I have communicated it to Governor Carleton, and requested that he will have the line run this winter due North from the source of the Cheputnaticook to see where it will strike and that we may have evidence of the fact if it proves to be in our favor:and if it should not, I think such a line must be run hereafter from the Source of the Magaguadavic, as I am satisfied that it will upon this principle, clearly show that this cannot be the river. Let me know your opinion of this hint. I think we should at present keep it secret, I have intimated as much to the governor." Mr. Barclay recurs to the point in a

the River St. Lawrence from waters falling not into the Gulf of St. Lawrence or the Bay of Fundy, but into the Atlantic Ocean. That the Bay of Fundy was not intended to be comprehended in the Atlantic Ocean was, the British statement maintained, shown by the treaty itself, which in the article in question spe cifically distinguished them by describing the mouth of the St. Croix River as being in the Bay of Fundy. It was also the constant usage of geographers to apply specific names to branches. or inlets of the sea for the purpose of presenting them as objects of distinct and separate consideration. In Mitchell's map and in many public documents the Bay of Fundy and the Gulf of St. Lawrence were distinguished from the sea or ocean.1

of 1783.

The original intent of the treaty, said the Design of the Treaty British statement, was not to include the St. John in the class of rivers falling into the Atlantic Ocean. The River St. Croix, which was described as having its mouth in the Bay of Fundy, was assigned as the extreme eastern limit of the United States. From the northwest angle of Nova Scotia the whole line was to be traced westward. It was intended at this initial point of the boundary to divide from each other at their sources the several great rivers assigned to each power. The only rivers that could have been intended to be divided by the highlands were those which emptied themselves between the meridian of the St. Croix eastward and of the head of the Connecticut River westward, thus securing to each power the whole of each river emptying within its territory. The line contended for by the United States would divide the St. John in the middle of its course.

Moreover, there was, the British statement maintained, irrefragible proof that the negotiators of 1782, and especially the American, had no thought of including the St. John among

letter to Mr. Hammond of November 20, 1796. (Rives's Correspondence of Thomas Barclay, 68, 70.) Mr. Chipman, as we have seen, argued the question before the commissioners, Mr. Sullivan, the American agent, replying. (Supra, Chapter 1.)

This same argument was used by Mr. Blaine, though with greater difficulty, in the Bering Sea correspondence. In the treaty between the United States and Russia of April 17, 1824, the language of which was then in question, it was provided that the citizens or subjects of the contracting parties should be neither disturbed nor restrained, either in navigating or in fishing, or in the power of resorting to the coasts, "in any part of the Great Ocean, commonly called the Pacific Ocean or South Sea." The British statement under the convention of 1827 did not, however, deny that the Bay of Fundy was a "part" of the Atlantic Ocean.

the rivers which were designated as falling into the Atlantic Ocean. Referring to the instructions of Congress of August 14, 1779, the rejection by the British Government of the line of the St. John, and the subsequent reduction of the boundary, the British statement, tacitly assuming that the westerly branch of the St. John on Mitchell's map was the St. John intended in the instructions, declared that no claim was ever made by the United States from first to last to any territory north of it, and that, when the original plan was abandoned and a new and more contracted line adopted, the boundaries adopted must have lain within the line of that river. Limits of Massachu- The British statement also endeavored to setts Bay: Fief of show that the limits of the province of MasMadawaska. sachusetts Bay never extended to the line claimed by the United States. The fief of Madawaska, which was within that line, was, said the statement, originally granted in 1683, eight years prior to the charter of Massachusetts Bay, to a British subject by the governor of Canada, which was then a French province. The province remained subject to France till 1763. During that entire period the fief of Madawaska had preserved its individuality under the original grant, and had always been within the jurisdiction of Canada. Moreover, the Madawaska settlement, though it was a totally different thing from the fief of Madawaska, being a modern colony planted subsequently to 1783, was also within the line, and was in the de facto possession of Great Britain. In the official census of the United States of 1810 no mention was made of it. In 1820 it was included, but it was stated in the census that the inhabitants "supposed they were in Canada.”

Madawaska Settle

ment.

Referring to the term "highlands," the BritTerm “Highlands." ish statement contended that it signified not lands which merely divided rivers flowing in opposite directions, but high and elevated lands which, though they need not constitute an absolutely unbroken and continuous ridge, must display a generally mountainous character. Under this view Great Britain maintained that the point called Mars Hill was the point of departure of the highlands, both because of its elevated character and because it was the first real elevation met by the due-north line from the source of the St. Croix River. The surveys under Article V. of the Treaty of Ghent had, said the British statement, established the fact that a generally hilly country extended from that point toward the

eastern branch of the Penobscot, connecting itself with a mountainous tract of country which was well known in 1782 and long before by the distinctive appellation of "The Height of Land," and which had been described in many public documents as dividing the waters that fell into the Atlantic Ocean from those that fell into the River St. Lawrence to the west of the sources of the River St. John and the western head of the Penobscot. Not one-third, it was declared, of the line claimed by the United States could be shown to run along lands which could properly be called "highlands." In fine, the British statement maintained:

Summary of British Arguments as to the Maine Bound

ary.

1. That the Bay of Fundy, as mentioned in the treaty of 1783, was intended to be separate and distinct from the Atlantic Ocean; and that that the River St. John, which falls into the Bay of Fundy, was intended, on that as well as on other grounds, to be excepted from the class of rivers described in the treaty as falling into the Atlantic Ocean; and consequently that the highlands described in the treaty must lie to the southward of that river.

2. That in 1782 the only ground on which the United States claimed the territory in question was that it formed a part of the province of Massachusetts Bay; that the utmost claim then made extended only to the line of the River St. John; and that in the course of the negotiations this line was materially contracted.

3. That, far within the line claimed by the United States as the boundary of the province of Massachusetts Bay, Great Britain held an extensive hereditary seigniory, the fief of Madawaska, indisputably Canadian in origin and always since 1683 under the jurisdiction of Canada.

4. That Great Britain had constantly exercised an actual and unquestioned jurisdiction in the disputed territory from the peace of 1783 to that of 1814, having held during that period uncontested de facto possession of other parts of the country than the hereditary seigniory above mentioned.

5. That the highlands claimed by Great Britain as those designated in the treaty of 1783 conformed in every particular to the conditions therein imposed, while those claimed by the United States conformed neither in position nor in character to those conditions.

On all these grounds Great Britain claimed that the point