Treaties. "north-west angle of Nova Scotia, of the north-westernmost head of Con- Provisions of "necticut River, and of such other points of the said Boundary, as they may "deem proper. And both parties agree to consider such map and declara"tion 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 wilfully 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." 66 The contingent arrangement, relative to the proceedings of the Commissioners, with respect to Boundaries, adverted to in the above cited article, being provided for in the fourth article of the same Treaty, the part of that article relative thereto is also here inserted. It runs as follows: "It is further agreed, that in the event of the two Commissioners differing upon all or any of the matters so referred to them, or in the event of both, or "either, of the said Commissioners refusing or declining, or wilfully omitting "to act as such, they shall make, jointly or separately, report or reports, as "well to the Government of His Britannic Majesty, as to that of the United States, stating in detail the points on which they differ and the grounds upon which their respective opinions have been formed, or the grounds upon which they or either of them have so refused, declined, or omitted to act. "And His Britannic Majesty and the Government of the United States hereby agree to refer the report or reports of the said Commissioners to "some friendly Sovereign or State, to be then named for that purpose, and "who shall be requested to decide on the differences which may be stated in "the said report or reports, or upon the report of one Commissioner, together "with the grounds upon which the other Commissioner shall have refused, "declined, or omitted to act, as the case may be. And if the Commissioner "so refusing, declining, or omitting to act, shall also wilfully omit to state "the grounds upon which he has so done, in such manner that the said "statement may be referred to such friendly Sovereign or State, together "with the report of such other Commissioner, then such Sovereign or State "shall decide, ex parte, upon the said report alone, and His Britannic Majesty and the Government of the United States engage to consider the "decision of such friendly Sovereign or State, to be final and conclusive on all "the matters so referred." Before we come to treat of the differences which have arisen under the Remarks on Provisions of above-cited provisions, it may be advisable to make a few preliminary remarks Treaties. on the particular scope and tendency of those provisions, as it is conceived that such explanatory observations may serve much to elucidate the subject of those differences. By an attentive examination of the stipulations contained in the 2d Article of the Treaty of 1783 above-cited, aided by a recollection of the relative position of Great Britain to the United States, we mean as a Mother Country treating with Colonies not yet recognized as independent, it will be clearly perceived that the main object had in view was not so much to designate the limits of the Territory reserved to the Mother Country, as to assign an appropriate Boundary to the new Power. It is highly important to bear this circumstance constantly in mind, as it will tend to solve many difficulties attending this complicated question, and to clear up the obscurity in which some of its essential points are involved. From the period of the cession to Great Britain by France of the Province of Canada, in 1763, to that of the Peace of 1783, the whole of that portion of North America belonged to Great Britain. When She determined to recognize the independence of a part of that Country, the question C Remarks on was, what Boundaries to assign to that part. The arrangement respecting them was made in reference to the Boundaries of the Provinces relinquished, and not in reference to those which remained under the Sovereignty of the King. In tracing those Boundaries, it appears from the Treaty that the first point which was sought to be established, was a point of departure for the general Boundary Line at the north-eastern extremity of the United States, that being taken, as it were, as the governing point of the whole Boundary to be traced west of the River St. Croix, which river was adopted as the extreme eastern limit of those States. That point of departure, which was intended to form the north-east angle of the United States, is in the Treaty designated as the northwest angle of Nova Scotia, and described in the following Clause of the Treaty, viz. : "" that angle which is formed by a line drawn due north from the source of "St. Croix River to the highlands, along the said highlands which divide "those rivers that empty themselves into the River St. Lawrence from those which 'fall into the Atlantic Ocean." The main difficulty of this part of the case lies in discovering and establishing that point. The extreme obscurity and confusion in which the whole question of Boundaries in that quarter was involved, both before and at the period in question, added to the very imperfect topographical knowledge then had of the interior of the Country, which was in fact but one general wilderness, rendered it absolutely impossible for the framers of the Treaty of 1783 to effect their declared intention of laying down the several points and lines of Boundary with such a degree of accuracy, as to preclude, altogether, doubts on particular parts of it. Accordingly, the very terms of the Treaty, in reference to the point in question, manifest the uncertainty of the negotiators; and they appear to have left to others the task of finding that point, guided by their description of it, rather than to have positively fixed it themselves. The main object was to trace this part of the northern frontier of the United States in such a manner as to throw certain rivers entirely into their territory; and, provided that object were accomplished, that is, provided the conditions attached to the highlands, and the point of departure on those highlands, were fulfilled, the relative position of that point of departure, with respect to the dominions of His Majesty, was of no importance. In truth, the Provinces of Canada and Nova Scotia being both unsettled in those parts, and there being between them, at the period of the Treaty of 1782-3, no certain and acknowledged Boundary, no man knew where the north-west angle of Nova Scotia really was; and the negotiators of the Treaty proceeded by other modes to describe the intentions of their respective Governments, which were, to give to each Power the entire possession of the great rivers which have their mouths within their dominions, respectively; and thereby, as the preamble of the Treaty expresses it, "to "establish such a beneficial and satisfactory intercourse between the two Countries upon the ground of reciprocal advantages and mutual convenience, "as may promote and secure to both perpetual peace and harmony." If the letter of the Treaty therefore be not clear upon the points in question, we must appeal to the spirit and intentions of the framers of it, to elucidate that letter. แ Every Treaty," says Vattel, "must be interpreted by certain fixed rules "calculated to determine its meaning, as naturally understood by the parties "concerned, when the Treaty was drawn up and accepted;" and again," since "the sole object of a lawful interpretation of a deed ought to be the discovery "of the thoughts of the authors of that deed, whenever we meet with any obscurity "in it, we are to consider what probably were the ideas of those who drew up the "deed, and to interpret it accordingly. Again, "we must consider the whole "discourse together, in order perfectly to conceive the sense of it, and to give "to each expression not so much the signification, which it may individually "admit of, as that which it ought to have from the context and spirit of the "discourse." Such is the light and sense in which Great Britain desires that the Remarks on provisions of the Treaties now under consideration should be viewed and Provisions of interpreted. Having now premised such considerations as are calculated to insure a correct conception and understanding of the subject about to be discussed, we proceed to the consideration of that subject.* The differences now referred to arbitration are three-fold. 1st. The Parties differ respecting the point designated in the Treaties as the north-west angle of Nova Scotia: and respecting the highlands along which the Line of Boundary is to be carried which is destined to divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean. 2d. The Parties differ respecting the true north-westernmost head of the River Connecticut. 3d. The Parties differ respecting the line to be drawn from the River Connecticut along the parallel of 45° north latitude to the River St. Lawrence, called in the Treaties Iroquois or Cataraguy. Treaties. Heads of Dif ference. FIRST BRANCH OF DIFFERENCE In treating the first-stated branch of difference, the principal question to be determined is this: ་་ N. W. Angle of divided by Where is the point designated in the Treaties as the north-west angle of "Nova Scotia ?" This point can only be determined by first determining the those Highother objects by which, according to the Treaty, that angle is entirely governed, lands. namely, the highlands, and the rivers to be divided by those highlands. It will be observed that the 2d Article of the Treaty of 1783, after mentioning the north-west angle of Nova Scotia, as the point of departure, from whence is to be traced the line of northern Boundary for the United States, in this part the Province of Massachusetts Bay, describes that point as an angle formed by a line drawn due north from the source of the St. Croix River to the highlands, and the line as running " 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 north-westernmost "head of Connecticut River." Great Britain contends that the point thus described 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. The United States have sought for this point at a spot 145 miles north of * As, in the course of the investigation of the present question by the Arbiter, it may be found expedient to make occasional reference to the historical circumstances which marked the contest between Great Britain and her Colonies, we have been induced to annex to the present Statement the history of the Reign of George III. by an historian of repute; and, for greater convenience, we have inserted in the Appendix that chapter of the work which relates to the period which more immediately preceded the close of the Contest. See Appendix No. 4, p. 14. Bay of Fundy the source of the River St. Croix; that is, to the north of the River St. distinct from John which falls into the Bay of Fundy, and of the River Restigouche which falls into the Bay of Chaleurs. Atlantic Ocean. The first point to be considered in treating this question is, whether the term "Atlantic Ocean," as used in this part of the 2d Article of the Treaty of 1783, is not contra-distinguished from the term "Bay of Fundy." This is the cardinal point of the whole of this branch of difference between Great Britain and the United States. With respect to that point, then, Great Britain maintains that throughout the whole Treaty of 1783, it is demonstrable by the Letter of the Treaty, as well as by collateral and inductive evidence, that the term "Bay of Fundy" is used as totally separate and distinct from the term "Atlantic Ocean;" and therefore on this, as well as on other separate and peculiar grounds, that the River St. John which falls into the Bay of Fundy is taken as distinct from those rivers which are described in the Treaty as falling into the Atlantic Ocean. We proceed, therefore, at once to treat these two essential points, which, although in the closest affinity with each other, must be considered each on its own peculiar merits. That, in the first place, the Bay of Fundy is not to be considered as comprehended, under the Treaty, in the Atlantic Ocean, is clearly demonstrable, it is conceived, from the following considerations: In the second article of the Treaty of 1783, and in one of its most essential points of designation, viz. that of the extreme eastern and the extreme western sea-coast Boundaries of the United States, the Bay of Fundy and the Atlantic Ocean are specifically distinguished the one from the other; the latter or extreme western boundary, being, in explicit terms, described as terminating in the Atlantic, by name, while the former or extreme eastern boundary is, in equally explicit terms, described as terminating in the Bay of Fundy, by name. The extreme western limit on the sea coast is described as formed by a line "drawn along the middle of St. Mary's River to the Atlantic Ocean." The extreme eastern limit is described as formed by a line " drawn along the middle "of the River St. Croix from its mouth in the Bay of Fundy," &c. That article after describing other parts of the general boundaries concludes thus: "Where the aforesaid boundaries between Nova Scotia on the one part, "and East Florida on the other, shall RESPECTIVELY touch the Bay of Fundy "AND the Atlantic Ocean." If one of these two terms is to be taken as comprehended in the other, why specify both? The declaration that the boundaries, eastern and western, of the United States, should touch the Atlantic at each extremity of the country, would surely have been amply sufficient for all purposes of delimitation, had not the term "Bay of Fundy" been intended as totally distinct from the term "Atlantic Ocean." In one part of the Treaty, then, the terms "Bay of Fundy" and "Atlantic Ocean" are manifestly intended as distinct and separate the one from the other. But being so taken in one part, they must surely be equally so considered in every other part: for it would be contrary to all reason and consistency to assign one meaning to a term in one clause, and a different meaning to the same term in another clause of the same instrument. It may, however, be asserted in opposition to this view of the case, that all bays and gulfs are parts of the seas with which they are connected; and that however it may be argued, that the Bay of Fundy is not a part of the Atlantic Ocean, from that ocean, whether under or independent of the Treaty, no force or ingenuity of argument can ever dissever it. Even setting aside the specific letter and intent of the individual Treaty now under consideration on this point, which we have above shewn to uphold the view taken by Great Britain, the argument above advanced is, we apprehend, altogether fallacious and inapplicable. Atlantic That bays and gulfs are, in the nature of things, parts of the sea, there Bay of Fundy can be no doubt; but it must be a very vague use of language when they are distinct from spoken of as component parts of seas of specific denomination, with which Ocean. they are immediately connected. It cannot be questioned that it is the constant usage of geographers to apply specific names to the various branches or inlets of the sea, with the express purpose of presenting them to view as objects of distinct and separate consideration. When we speak of the Gulfs of Bothnia or Finland, do we not always consider them as distinct from the Baltic? or of the Adriatic or Archipelago, as distinct from the Mediterranean ? So Baffin's Bay and Hudson's Bay would be considered as distinct from the Northern Ocean, and the Gulfs of Mexico and Florida, and Chesapeak Bay, from the Atlantic. Would it be correct, or consistent with the received use of language, to affirm that St. Petersburgh is built on the Baltic, Venice on the Mediterranean, Amsterdam on the North Sea, Baltimore and Annapolis on the Atlantic Ocean? Yet all the bays and gulfs, on which these places respectively stand, are to the respective seas, with which they are immediately connected, what the Bay of Fundy is to the Atlantic Ocean. Therefore as all those bays and gulfs are taken as distinct from the seas and oceans with which they are respectively connected, so must the Bay of Fundy be taken as distinct from the Atlantic Ocean. In the above application of the terms bay and gulf, we refer only to such as are real branches of the sea, into which rivers may or may not discharge themselves. There is another class of bays, so called by geographers, which are merely the expansions of the mouths of rivers, of which they bear the name, such as the Penobscot, the Sagadahock, the Delaware, and others of a similar character, which can be regarded in no other light than as portions of the rivers themselves. The above reference to universal geographical practice is made, not as the sole, or even the principal, ground on which Great Britain rests the distinction which she claims for the Bay of Fundy as separate from the Atlantic Ocean, but to shew that geographical practice, so far from being at variance with that claim, most strongly upholds and confirms it. When the terms used by geographers to designate different portions of the sea are contained in Treaties and other solemn documents, especially when the very object is to define with precision the limits of conterminous States, the appropriate signification of such terms should be still more strictly adhered to. In further corroboration of the same claim, it can be shewn that the distinction between the Bay of Fundy, and the Atlantic Ocean, as well as between other bays and gulfs and the same ocean, has been constantly observed in public documents, having reference to the countries and districts bordering on such bays and gulfs, and the Atlantic Ocean, respectively. At the head of these documents must be placed Mitchell's Map*, annexed to the Convention of the 29th September, 1827, as an authentic document of reference. That map displays, broadly and clearly, the deeply-indented Bay of Fundy, as well as the Gulf of St. Lawrence, in large and conspicuous characters, each under its proper title, and totally distinct from the Atlantic Ocean. We abstain from citing other maps in confirmation of the same fact, because, although other maps may have been consulted in private by the British and American negotiators, it is on record that that of Mitchell alone regulated their public and joint proceedings, and is, therefore, alone available as authentic evidence. 2dly. In the grant of Nova Scotia, by James I. to Sir William Alexander, Appendix, the Bay of Fundy, and the Gulf of St. Lawrence, are specifically described and No. 5, p. 32. *Mitchell's Map B. |