waska. Fief of Mada- Commissioners under their ultimate agreement above mentioned, form the sole basis of the present reference to arbitration. We shall, however, shew by documentary evidence of the most positive nature that the limits of the Province of Massachusetts Bay never did, and never could, extend to the line now claimed by the United States. Appendix, No. 13 to 25 inclusive, p. 172 to p.215. In the British separate transcript (A a) of the map annexed to the convention under the denomination of the map A, there will be perceived, marked in green, a tract of country situated on the Madawaska River, and the Lake Temisquata, at a short distance from the River St. John. That district, laid down according to the most accurate measurement founded on the documentary authority hereinafter specified and annexed, represents a portion of territory denominated the "Fief of Madawaska", which was originally granted in the year 1683, (that is, eight years prior to the Charter of Massachusetts bay,) to a French subject, by the Governor of Canada, which was then a French Province. That Province remained subject to France from that period down to the year 1763, at which time the whole of the French possessions in that part of North America were definitively ceded by Treaty to Great Britain. During that entire period, however, and down to the present day, the Fief of Madawaska, in spite of all transfers, whether of the Province generally from nation to nation, or of itself individually from hand to hand, has preserved its individuality under the original grant, and has constantly been, and is at this moment, subject to the jurisdiction of Canada. In proof of the accuracy of this assertion, we refer to the annexed papers, numbered from 13 to 25 inclusive. The first of these papers, marked 13, contains the original grant of that territory in 1683. The others display the successive deeds of transfer and acts of jurisdiction exercised over it in Canada, from that period to the year 1802; since which time the fief has remained in possession of the same occupant. Here, therefore, exists an extensive Possession incontestably Canadian, held by virtue of the rights derived to Great Britain, from the cession to her of Canada by France, far within the Line of Boundary claimed by the United States, as having formed part of the Province of Massachusetts Bay. Now, on what possible ground can the United States, who, in preferring their claim in 1782 to Territory in this quarter, professed to adhere to the charter of Massachusetts Bay, now lay claim to Territory which was granted to a French Subject by a French Governor of Canada, before the existence of the Charter of Massachusetts Bay, and which has always formed an integral portion of Canada, whether held by France or Great Britain? But not only does this interposition of territory, unquestionably Canadian, invalidate the claim of the United States, as founded on the Charter of Massachusetts Bay, but it also, when considered under another point of view, totally breaks down their argument respecting the line of highlands claimed by them; for it disables those highlands from fulfilling the distinctive condition required of them by the Treaty of 1783, namely, that they shall divide the rivers falling into the St. Lawrence from those which fall into the Atlantic Ocean. Amongst these latter we have seen that the United States include the River St. John. On consulting again the British transcript of the map A, it will be seen that the Fief of Madawaska extends from near the sources of the River Madawaska to within a few miles of the River St. John, of which it is the principal tributary in that quarter. We conceive that it will hardly be pretended, that the Seigniory of Madawaska could have been considered, at the period of the original grant, as an insulated portion of Canada, totally disunited from that Province. We therefore assume that the Province of Canada extended, at the period of the original grant of the Fief of Madawaska, uninterruptedly, from beyond the Line of Boundary now claimed by the United States, along the Madawaska River, Fief of Mato the entire extent of that Šeigniory. But assuming this to be the case, it dawaska. is manifest that the American Line must, at the point towards the source of the Madawaska, experience an absolute chasm,-a complete interception,-by the interposition of that portion of Canada. But how would such a line fulfil the conditions of the Treaty? It would certainly, in that case, neither run along highlands, nor would it divide rivers falling into the St. Lawrence from rivers falling into the Atlantic; since the upper part of the Madawaska would undoubtedly be on the same side of the line with all the rivers which fall into the St. Lawrence. But without entering into arguments which might be derived from other sources, to shew what the general Boundary Line of Canada was, we may fairly assert, that the simple fact of the Fief of Madawaska having been originally granted and invariably held under the jurisdiction of Canada, whether French or English, goes far to warrant the conclusion that the whole tract of Country in which that Fief lies, was always considered and treated by the Authorities of Canada as an integral portion of that Province. disputed Ter Upon such assumption or assertion alone, however, whatever may be its Canadian Jujustice or strength, we do not propose to rest our argument. That the Country risdiction in has been so considered and treated is demonstrable from documentary evi- ritory. dence of an equally conclusive character with that already adduced on behalf of the Fief of Madawaska. To that evidence we accordingly appeal. No. 28, p. 225. On the 24th of January, 1765, a public notice, hereunto annexed, was Appendix, issued by the Office of the Provincial Secretary in Canada, and published by authority, according to custom, in the Quebec Gazette, by which notice all Canadian inhabitants were prohibited from interfering with the hunting ground of the Indians down to the Great Falls of the River St. John. Again, on the 11th of November, 1784, that is, but one year subsequent Appendix, No. 26, p. 220, to the Treaty of 1783, an Indian was condemned by the Courts of Canada, No. 27, p. 222, and executed for a murder committed at Madawaska. The documents con- No. 28, p.223. taining an account of this proceeding are hereto annexed. No. 29, p. 228. Again, in the year 1789, proceedings were commenced in a Court at Appendix, Quebec, and continued to the 20th of January, 1791, in an action for damages brought against Augustin Dubé and Pierre Duperé, residing at Madawaska, in which the defendants put in a plea against the jurisdiction of the Court of Quebec, alleging that they resided within that of New Brunswick. The plea was rejected on various grounds; amongst others, absence of proof on the part of the defendants that Madawaska was not within the jurisdiction of Canada; and the defendants were cast accordingly. No. 28, p. 223. Again, on the 10th of November, 1791, a Sheriff's notice was published Appendix in the Quebec Gazette for the sale of lands of the said Pierre Duperé at Madawaska, apparently in execution of the judgment in the last-mentioned case. Again, in 1785, the Council of Quebec took into consideration the expediency of making a road from Kamouraska on the St. Lawrence, to Lake Temisquata, along that district called the Temisquata Portage, in order, as it is stated, to obtain an easy and speedy communication between the Provinces of Canada and New Brunswick, "particularly in time of war, when an easy " and speedy communication, independent of the States of America, becomes absolutely necessary; and when, in times of peace, from the inconvenience " of sending Government and other Despatches by way of New York, which "is every day more apparent, the American Postmaster having lately refused "the Postmaster-General here (at Quebec) to allow the Couriers from this "Province to pass through their territories, insisting that all letters shall go "by their mails only." Appendix, Again, in 1787-1792, the question of the respective Boundaries of Canada Appendix, G No. 31, p 232. Canadian Ju- and the then newly-erected Province of New Brunswick* was brought before risdiction in the Council at Quebec. The paper which contains an account of the proceedritory. ings thereupon is highly valuable and important, especially as proving that what disputed Ter Appendix, p. 239. Appendix, Appendix, ever disputes may have existed between the respective British Provinces as to their several limits, not the smallest doubt seems to have been ever entertained by them as to the right of Great Britain to the whole territory thus contested between the provinces. In this document it is shewn, that for several years prior to 1792 the Government of Canada had established a militia at Madawaska, and that the Courts of Quebec had exercised jurisdiction in various cases within that settlement. It will also be seen therein, that, in opposition to the claim set up at that time by New Brunswick to a Boundary north of Lake Temisquata, the Committee of the Council of Quebec contended that such Boundary would interfere with "the seigneuries under Canadian grants as far back as the years 1623 " and 1683, besides the Accadians settled above the Great Falls of St. John's River." The report of the Committee proceeds thus :-" The Committee most hum"bly submit to your Lordship whether it would not be for the advantage of both "Governments that the Province of Quebec be separated from that of New "Brunswick by a line running along the highlands which extend from the head of "Chaleurs Bay to the foot of the Great Fall of St. John's River, and from thence crossing the river (so as to include the whole of the portage or carrying place) " and continuing in a straight line towards the sources of the River Chaudière, which rise on the highlands that commence at the said head of the Bay of Chaleurs, "and extend all the way to the north-westernmost head of Connecticut River." This opinion clearly shews what conception was at that time entertained by the Canadian authorities respecting the Boundaries of Canada and Nova Scotia. In a subsequent part of the same document, it is distinctly stated that at that time (in 1792) "the line between the two Provinces of Canada and New "Brunswick had not been ascertained;" and it was then the declared object of the Canadian Government, "to call the attention of His Majesty's Ministers to "the adjustment of the limits necessary for preserving the public tranquillity "of both Provinces." Again, in 1791, an official list was made out of the Parishes in the Province of Quebec, in which list the Parish of Madawaska is included, and a description given of the species of tenure by which the settlers held their land; and a census of the male population, above 19 years of age, is also thereto annexed. The above-cited series of documents clearly establishes Canadian jurisdiction, as far as the Great Falls of the St. John, for a long period, both before and since the Treaty of 1783, and thereby further negatives the American claim to this Country, as founded on the supposed limits of Massachusetts Bay. Furthermore there can be shewn, from American testimony, a de facto posNo. 34, p. 246. session by Great Britain of the district, called the Madawaska Settlement, on the River St. John, beginning a few miles above the Great Falls, and extending beyond the confluence of the River Madawaska with the St. John, which possession was never called in question by the United States until the termination of the war between Great Britain and the United States, in 1814. We think it necesssary, in order to prevent mistakes from the similarity of the names, to state here that the "Madawaska Settlement," and the " Fief of Madawaska," are two totally different things, and not in any way connected with each other. The former is a modern colony, planted subsequently to the Treaty of 1783: the latter is, as we have shewn, an hereditary seigniory, granted by the Government of Canada a century antecedent * Subsequently to the Treaty of 1783 the British Province of Nova Scotia was divided into two separate Provinces, of which the one retained its former name; and the other, embracing the British territory in the vicinity of the due north line, and the adjacent parts of the old Province of Nova Scotia, received the name of New Brunswick, to the Treaty of 1783, and from that period to this, subject to the jurisdiction Madawaska of Canada. We prefer giving the account of the Settlement of Madawaska in the very words of the Special American Agent, who was sent by order of the American Government to inquire into its origin, history and actual condition. "This settlement," says Mr. Barrell in his report, "derives its name from the River Madawaska, which empties itself into the River St. John about "thirty-six miles above the Great Falls, and about one hundred and sixty miles above Fredericton. The first settlers arrived soon after "the Treaty of 1783, and the first grant, which was of fifty-one several "lots or plantations of land, was made to Joseph Muzeroll and fifty-one "other French settlers, in the month of October 1790, by Thomas Carleton, Esq. then Lieutenant-Governor of the Province of New Bruns"wick. The land granted lay at intervals between the River Verte and the Madawaska River, nine miles distant from each other, and on both sides of "the River St. John. The second grant was of 5253 acres of land lying below "the River Verte, and was made to Joseph Soucer and others by Lieutenant"Governor Carleton in August 1794. These are the only grants ever made "by the British Government within the settlement, excepting one to Limo "Hibert* of 250 acres of land opposite to and upon the River Madawaska, in May 1825. "The laws of the Province of New Brunswick appear to have been always in "force since the origin of that settlement. The settlers have acquiesced in the "exercise of British authority, both civil and military, among them, and have "for many years had an organized militia in the settlement. "The population of Madawaska amounts to about 2,000, and is almost exclu"sively French." * * * In confirmation of the above statement, copies of the original grants land in that settlement, made in 1790 and 1794, are hereto annexed. Settlement. of Appendix, In further corroboration of the same statement, we also quote the deposition of one of the first settlers, Simon Hebert, which was taken on oath, on the occasion of the trial, before the Tribunals of New Brunswick, of one John Baker, mentioned in the Report above-cited. That deposition establishes clearly the fact stated in that Report, of the settlers having, from the very commencement, considered themselves as subject to British jurisdiction. Simon Hebert, being sworn, deposed as follows: No. 37, p. 260. Appendix, "I live two miles below Madawaska River. Have lived there forty years No. 38, p. 266. "next month; I moved there from the French village about ten miles above "Fredericton. I have a grant of my land from this Province. It is the first grant in the Madawaska, and was made about two or three years after "I moved up. I live under this Government, and have always lived under it. "All the Madawaska settlers live under the same Government. I vote at "elections. The first time was about eight years ago." This last-cited evidence proves an actual jurisdiction over this Territory, since the Treaty of 1783, by the British Province of New Brunswick. The claims of this Province and Canada, with respect to this and other parts of the territory in this quarter are conflicting inter se, and shew the uncertainty of their respective Boundaries, which in fact have never been settled, and may require the interference of the Mother Country to adjust: but these conflicting intercolonial claims, which have arisen since the Treaty of 1783, are altogether irrelevant to the present controversy between Great Britain and the United States, as a Foreign Power, and under that Treaty. Whether under the one province or the other, the possession is British. The right to that possession was first called in question by the United States, and that only constructively, at the period of the negotiations at Ghent in 1814. *Simon Hebert. Madawaska Settlement. A reference to the two annexed official decennial censuses of the United States, and, specifically, of the State of Maine, will shew that in 1810 no Appendix, mention was made of the Madawaska Settlement; whereas in 1820 that No. 39, p. 277. Settlement was included in the general estimate of the population of the United States; it being, however, stated in this Census of 1820, that the inhabitants of this settlement" supposed they were in Canada." Highlands. Appendix, Under all these circumstances, Great Britain conceives herself to have a fair right to assume that this Settlement and territory have been, from the earliest period, considered a part of the British dominions. We now believe ourselves to have demonstrated, from all the considerations and evidence above adduced, that the line claimed by the United States as their boundary, cannot possibly, in point of position, be the line intended by the Treaty of 1783. We have already demonstrated, on the other hand, that the line claimed by Great Britain is in strict accordance with the intentions of the framers of the Treaty, and does in every respect, in point of position, fulfil the conditions imposed on it by the Treaty. There is a separate ground, namely, that of the specific meaning and character attached to the term "highlands," on which we shall briefly consider the question before we close this part of our argument; and we propose to shew, in the first instance, that in this more contracted view of the question, as well as on the broader and higher grounds already discussed, the highlands claimed by Great Britain have a just title to be considered as fulfilling the conditions of the Treaty. We will then consider the character of the line claimed by the United States in this respect. Great Britain then maintains that the term highlands employed in the Treaties implies not merely lands which divide rivers flowing in opposite directions, but high, i. e. elevated, lands, or, in other words, a mountainous tract of country. The United States, on the contrary, contend that the term " highlands" does not imply visible elevations, but simply lands, whether high or low, which cause waters to flow in opposite directions. It is of course not pretended, on the part of Great Britain, that in order to support the character which she assigns to the term "highlands," those highlands should present an absolutely unbroken and continuous ridge, without the intervention of valley or swamp. She does, however, maintain, that the "highlands" ought to conform to the above-cited definition of the term, by displaying a generally elevated and mountainous character; and such a character she affirms that the highlands claimed by her do in reality bear. Under this view of the intent of the term " highlands” as used in the Treaties, Great Britain maintains that the point called Mars Hill is, with propriety, claimed by her as the point of departure on the "highlands" as well on the ground of that point being the nearest real elevation met by the due north line drawn from the source of St. Croix River, as on the other and more essential grounds already discussed. From Mars Hill the surveys hereto annexed, which were made by Surp. 88. veyors appointed for that purpose by the Commissioners under the 5th Article ,, k, p. 90. of the Treaty of Ghent, shew that a generally hilly country is found to extend towards the eastern branch of the River Penobscot. D,2. m,p.113. The accuracy of those surveys and the reports* of the Surveyors which accompany them, has been attempted to be impeached by the Agent of the United States under the 5th Article of the Treaty of Ghent, but ineffectually. * Although in this statement such only of the reports made under the 5th Article of the Treaty of Ghent are specifically adduced in evidence, as Great Britain considers necessary for the support of her claim, the whole collection of those reports and surveys are nevertheless annexed hereto, in order that full and impartial means may be afforded to the arbiter to make immediate reference to any part of them, and to judge between the conflicting representations of the respective British and American Surveyors. |