GOVERNOR'S MESSAGE AND DOCUMENTS ON THE SUBJECT OF 2rhe ISofnss of the '3ix\iittx, WITH THE REPORT OF THE COMMITTEE OF THE LEGISLATURE, IN RELATION TO THE Northeastern Boundary. PRINTED BT ORDER OF THE LECISLATURG. TODD AND ilOLOEN...,FR INTERS. 1831 A STATE OF MAINE. The joint Select Coniinittee to whoitv so much of the Message «f tlie Governor as related to the North Eastern Boundary was 'Committed, liave Jiad the same under consideration and REPOaT. Whereas, the boundaries between the State of Maine, and the British Provinces of Lower Canada and New Brunswick, are definitely described in the provisional treaty of peace of 1782, which by its provisions was in- corporated into, and became a part of the definitive treaty of peace of 1783 — wherein the boundaries are set forth and described as follows, to wit : " From the NORTH WEST angle of Nova Scotia, to wit, that angle which is formed by a line "drawn due north from the source of the St. Croix river to the highlands, along the said high- lands which divide those rivers that empty themselves into the St. Lawrence from those which faU into the Atlantic Ocean, to the Northwesternmost head of Connecticut river, &c." And again, " East by a line to be diawii along the middle of the }-iver St. Croix from its mouth in the bay of Fundy to its source and from its source directly north to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence." And whereas — The treaty adopted the boundaries of the British Provinces respectively, wliich had been formed and accu- rately described by the government in a succession of acts for nearly twenty years before the aforesaid treaty — and have also, since said treaty been often described and recognised by other acts of the British government. In (he British proclamation of 17G3, the boundary of the 1« Province of Quebec created by that proclamation, and the province of Massachusetts bay is thus described — " From whence the line crossing the river St. Lawrence and lake Champlain in 45 degrees of North Latitude passes along the highlands which divide the rivers that empty themselves into the said river St. Lawrence from those which fall into the sea, and also along the North Coast of the Bay des Chaleur and the coast of the gulf of St. Lawrence to Cape Rosierres." In the commis- sion to the first Governor of the Province of Quebec, the boundaries of his government are described in the same words ; and such continued to be the description of boundary in the successive commissions to the Governors of the Province until September 1777. The act of Par- liament of the 14th of George 3d, (1774) relating to the Province of Quebec, bounds the Province " South by a line from the Bay of Chaleur, along the highlands which divide the rivers which empty themselves into the river St. Lawrence from those which fall into the sea to a point in the 45th deg. of north latitude on the eastern branch of the river Connecticut." The commissions to the suc- ceeding Governors of the Province of Quebec until long since the treaty of 1783, if not to the present day, con- tain the same description of boundary, with one slight difference, to wit, the northwesternmost head of Con- necticut river is substituted for " the eastern branch of Connecticut river." And whereas also The commissions to the successive Governors of the Province of Nova Scotia contain an equally e.\act and precise description of boundary between that province and the province of Massachusetts bay. The commis- sions to Governors Wilmot, Campbell, Legge, Hughes, Haldimand and Pan, the Governors of Nova Scotia from 1763 to 1784, when the Province of New Brunswick was set off from Nova Scotia, all bound the province west by a boundary commencing at '• the mouth of the riifer St. Croix, then by the said river to its source aiid by a line draivn due north from thence to the southern boundary of the Province of C^uebec." To the northward by said boundary as far as tlie western extremity of the Bay des Chaleurs. Such is also the precise description of boun- dary in the first commission to the first Governor of the Province of New Brunswick, and it is presumed such • M boundaries have been continued in the commissions to the several Governors to this day, unless tiiey have been lately modified to favor a fictitious claim. And whereas also The British agents and commissioners did always con- cede, admit, and declare that the line running north from the source of the river St. Croix, crossed the river St. John to the highlands between the St. John and the river St. Lawrence, the boundary of the Province of Quebec, now Lower Canada. The British commissioners at the treaty of Ghent offered to purchase the north part of this State of the United States, but were refused. The British did not set up any claim to the Country until 1818, when they introduced a vague and uncertain one, one which they did not pretend to define, as that would have made its fallacy too palpable. Therefore Resolved, That the territory bounded by a line running by the heads of the streams falling into the river S. Lawrence, and between them, and streams falling into the river St. John, or through other main channels into the sea, until such line intersects a line drawn due north from the source of the river St. Croix, is the terri- tory of the State of Maine wherein she has constitutional right and authority to exercise sovereign power — and the Government of the United States have not any power given to them by the Constitution of the United States, to prohibit the exercise of such right, and it can only be prohibited by an assumption of power. Whereas — By the force and effect of the treaty of 1 "83, the Commonwealth of Massachusetts became the sovereign, having the right of exercising the sovereign power over all the territory which had been under her jurisdiction as a colony, after the proclamation, and the commissions to the Governors of the Provinces of Quebec and Nova Scotia in 1763; she continued to be the sole sovereign, until the adoption of the Constitution of the United States to which she was a party, and wherein she surrendered a partial and qualified sovereignty for the general benefit of the whole. The State of Maine by the force and effect of the act of separation became vested with the rights of sovereignty of Massachusetts. One of the inducements to the adoption of the Constitu- tion of the United States, was hiutual security and pro- tection, of the whole, and every part of the whole. A Republican form of Government is expressly guaranteed to the people ; and all rights and powers not delegated are expressly retained by the States. Among the rights and powers not delegated, are the rights and powers in the States respectively to retain their entire territories and of exercising sovereign power over them ; and tiie implication is as strong as implication can be, that each State is bound to guarantee to the other, the integrity of its territory. There is no power given to Congress by the Constitution to dismember a State. Such power cannot be exercised without the agreement and consent of the State, if it can be done, without the consent and agreement of all the States in the manner provided for amending or altering the Constitution. A power of dismembering States would be dangerous to the last degree. If once admitted, it might in its consequences break down and absorb all the State sove- reignties. Whenever that takes place, the people of this happy and flourishing country, will be reduced to the condition of the people of other countries ; they will have just as much, and no more liberty, than the gov- ernment will graciously permit them to enjoy. If the government of the United States can cede a portion of an independent State to a foreign government, she can, by the same principle, cede the whole — and if, to a for- eign government, she can by the same principle annex one State to another, until the whole are consolidated, and she becomes the sole sovereign and law giver, without any check to her exercise of power. The exercise of such a power ought to be, and always will be resisted by a free people, more especially by those and their descend- ants, who resisted the arbitrary power of the British, and reared upon its ruins our free and happy institutions. And whereas also The British had clearly and distinctly described the boundaries for the period of twenty years before the treaty of 1783, also in that treaty, and for many years afterwards, if not to the present day, by a succession of acts in the several departments of their government: Therefore Resolved, That the convention of September 1827, tended to violate the Constitution of the United States and to impair the sovereign rights and powers of Ihe State of Maine, and that Maine is not bound by the Constitution to submit to the decision, which is or shall be made under that convention. Whereas, By the convention of September 1827, an independent sovereign was to be selected by the govern- ments of the United States and Great Britain, to arbitrate and settle such disputes as had arisen, and the King of the Netherlands was pursuant to that convention selected the arbiter, while an independent sovereign, in the pleni- tude of his power, exercising dominion and authority over more than 6,000,000 of subjects : And Whereas, By the force of the prevalence of lib- eral opinions in Belgium, the Belgians overthrew his power, and deprived him of more than half of his do- minions and reduced him to the former dominions of the Stadtholder leaving him with the empty title of the King of the Netherlands while he is only the King of Holland, and thereby increasing his dependence, upon Great Britain for holding his power even in Holland, which from public appearances, he held by a very doubt- ful tenure in the affections of the Dutch. Ani* Whereas, The King of the Netherlands had not decided before his Kingdom was dismembered and he consented to the division, and his public character had changed, so that he had ceased to be that public charac- ter, and occupying that independent station among the Sovereigns of Europe contemplated by the convention of September 1827, and which led to his selection. Therefore Resolved in the opinion of this Legislature, That the decision of the King of the Netherlands, cannot and ought not to be considered obligatory upon the gov- ernment of the United States, either on the principles of right and justice, or of honor. Resolved Further— for the reasons before stated, That no decision made by any umpire under any circumstances, if the decision dismembers a State, has or can have, any constitutional force or obligation upon the State thus dismembered, unless the State adopt and sanction the decision. All which is respectfully submitted. JOHN G. DEANE, per order. House of Representatives, 28th Feb. 1831. House of Representatives, Feb. 28, 1831. The foregoing Preamble and Resolutions were adopted with closed doors. Sent up for the concurrence of the JOHN RUGGLES, Speaker. In Senate, February 28, 1831. The foregoing Preambles and Resolutions were adopted with closed doors ; in concurrence with the House of Representatives. ROBERT P. DUNLAP, President. To the Senate and House of Representatives ; I have received from the Secretary of State of the United States, under the direction of the President, a copy and translation of the award given by the King of the Netherlands in relation to the Northeastern Boun- dary of the United States, upon the question submitted to him, and also a copy of the Protest which the Minister of the United States at the Hague thought it his duty to make against the award referred to, together with extracts from his despatch to the Department of State, shewing the character of the Protest, and the ground upon which it was made ; and a copy of the correspondence between himself, and Sir Charles Bagot, the Ambassador of Great Britain at the same Court, upon the subject. Copies of these Documents, and also of the accom- panying letter of the Secretary of State of the United States, will herewith be laid before you. The President, through the Secretary of State, has expressed his desire, that while this matter is under deliberation, no steps may be taken by the State of Maine, with regard to the dis- puted territory, which might be calculated to interrupt or embarrass the action of the Executive branch of the Government of the United States upon this subject. The importance of this suggestion will be duly appreciated by the Legislature. And while we adopt such measures as shall be judged proper and expedient to make our rights and claims known to the government of the United States, it will doubtless be considered that we must, under the provisions of the Federal Constitution, rely with confidence upon that government for the enforce- ment of our claims against the power of Great Britain. SAMUEL E. SMITH. Council Chamber, March 25, 1831. In Senate, March 25, 1831. Read and with the accompanying documents referred to Messrs. Sanford Kingsbery, Theodore Ingalls, Syms Gardner, and James Steele, with such as the House may join. Sent down for concurrence. ROBERT P. DUNLAP, President. 10 House of Representatives, March 25, 1831. Read and concurred, and Messrs. John G. Deane o( Ellsworth, Gorham Parks of Bangor, David C. Magoun of Bath, Benjamin J. Herrick of Alfred, Eleazer Coburn of Bloomfield, Ebenezer Knowlton of Montville, and John C. Talbot of Machias, were joined on the part of the House. BENJAMIN WHITE, Speaker. 11 Department of State of the United States, Washington, ISth March, 1831. XFo His Excellency Samuel E. Smith, Governor of the State pf Maine. Sir, — By the President's direction, I have the honor to transmit, herewith, to your Excellency, a copy and trans- lation of the award given in relation to the Northeastern Boundary of the United States, upon the question which was submitted to the King of the Netherlands, by this Government and that of Great Britain concerning that Boundary — which award was officially delivered to the Minister of the United States at the Hague, on the tenth day of January last, and by him forwarded to this Depart- ment, where it was received on the 16th instant. With a •view of making your Excellency acquainted with the state of this transaction, as received here, I also transmit herewith a copy of the Protest which the Minister of the •United States at the Hague thought it his duly,' without instructions to that effect from the President,' to address -to the Minister of Foreign Affairs of the Government to which he is accredited, against the award referred to, — together with extracts from his despatch to this Depart- ment, showing the character of his Protest, and the ground upon which it was made ; and a copy of the correspond- ence between himself and Sir Charles Bagot, the Ambas- sador of Great Britain at the same Court, upon the subject. Mr. Preble has asked leave of absence, for the purpose of visiting the United States, which will be forthwith granted, and expressed an earnest wish that he may be further heard upon the subject, before any measures in regard to it are adopted by the President. I have the honor, likewise, by direction of the Presi- dent, to repeat the assurance which I made to your Ex- cellency, in his behalf, in my letter of the 9th instant, that the subject of this award will receive all the atten- tion and consideration to which its great importance, and the interests of the State of Maine, so materially involved therein, especially entitle it, in the CounciU of the Exec- 12 utive of the United States; and to add that no time will be lost in communicating to your Excellency, the result of his deliberations upon it, as soon as he shall have de- termined upon the course, which a sense of his high and responsible duties may suggest as proper on the occasion. Under these circumstances, the President will rely with confidence upon the candor and liberality of your Excel- lency and the other constituted authorities of Maine, in appreciating the motives which may influence that course on his part, and in a correspondent interpretation of them to your constituents, in whose patriotism and discretion he has equal confidence. In making this communication to your Excellency, I am instructed by the President to express his desire that, while the matter is under deliberation, no steps may be taken by the State of Maine, with regard to the disputed territory, which might be calculated to interrupt or em- barrass the action of the Executive branch of this Gov- ernment upon the subject. I have the honor to be, with the highest respect, Your Excellency's most ob't servant, M. VAN BUREN. (B.) TRANSLATION. William, By the Grace of God, King of the Nether- lands, Prince of Orange, Nassau, Grand Duke of Luxem- burg, &-C. &,c. &c. Having accepted the functions of Arbitrator conferred upon us by the note of the Charge' d' Aflaires of the Uni- ted States of America, and by that of the Embassador Extraordinary and Plenipotentiary of Great Britain, to our Minister of Foreign Affairs, under date of the 12th January, 1S29, agreeably to the 5th Article of the Treaty of Ghent, of the 24th December, 1814, and to the 1st Ar- ticle of the Convention concluded between those Powers, at London, on the 29th of September, 1827, in the differ- ence which has arisen between them on the subject of the boundaries of their respective possessions : Animated by a sincere desire of answering, by a scru- pulous and impartial decision, the confidence they have !3 testified to us, and thus to give them a new proof of the high value we attach to it : Having, to that effect, duly examined and maturely weighed the contents of the first statement, as well as those of the definitive statement of the said difference, which have been respectively delivered to us on the 1st of April of the year 1830, by the Envoy Extraordinary and Minister Plenipotentiary of the United States of America, and the Embassador Extraordinary and Plenipo- tentiary of His Britannic Majesty, with all the documents thereto annexed in support of them : Desirous of fulfilling, at this time, the obligations we have contracted in accepting the functions of Arbitrator in the aforesaid difference, by laying before the two High Interested Parties the result of our examination, and our opinion on the three points into which, by common ac- cord, the contestation is divided. Considering that the three points above mentioned ought to be decided according to the treaties, acts and conventions concluded between the two Powers ; that is to say : the Treaty of Peace of 17S3, the treaty of Friend- ship, Commerce and Navigation of 1794, the Declaration relative to the river St. Croix of 1798, the Treaty of Peace signed at Ghent in 1814, the Convention of the 29th Sep- tember, 1S37; and Mitchell's Map, and the Map A. re- ferred to in that Convention. JVe declare, that, As to the first point, to wit, the ques- tion, which is the place designated in the Treaties as the North-west angle of Nova Scotia, and what are the high- lands dividing the rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean, along which is to be drawn the line of boundary, from that angle to the Northwesternmost head of Con- necticut River. Considering, That the High Interested Parties respect- ively claim that line of boundary at the South, and at the North of the river St. John ; and have each indicated, upon the Map A. the line which they claim : Considering, That according to the instances alleged, the term highland applies not only to a hilly or elevated country, but also to land which, without being hilly di- vides waters flowing in different directions ; and that thus the character more or less hilly and elevated of the coun- 14 try through which are drawn the two lines respectively claimed, at the north, and at the south, of the river St. John, cannot form the basis of a choice between them. That the text of the 2nd Article of the Treaty of 17S3, recites, in part, the words previously used, in the Procla- mation of 1763, and in the Quebec act of 1774, to indi- cate the Southern boundaries of the Government of Que- bec, from Lake Champlain, " in forty five degrees of North Latitude, along the highlands which divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the sea, and also along the north coast of the Bay des Chaleur." That in 1763, 1765, 1773, and 17S2, it was established tliat Nova Scotia should be bounded at the North, as far as the western extremity of the Bay des Chaleur, by the Southern boundary of the Province of Quebec; that this delimitation is again found, with respect to the Province of Quebec, in the Commission of the Governor General of Quebec of 1776, wherein the language of the Proclamation of 1763 and of the Quebec act of 1774 has been used, as also in the Commissions of 1786, and others of subsequent dates of the Governors of New Brunswick, with respect to the last mentioned Province, as well as in a great number of maps anterior and posterior, to the Treaty of 1773; and that the 1st Article of the said Treaty specifies, by name, the States whose independence is acknowledged : But that this mention does not imply (impliquo) the entire coincidence of the boundaries between the two Powers, as settled by tlie following Article, with the an- cient delimitation of the British Provinces, whose preser- vation is not mentioned in the Treaty of 1783, and which owing to its continual changes, and the uncertainty which continued to exist respecting it, created, from time to time, differences between the Provincial authorities : That there results from the line drawn under the Trea- ty of 1783 through the great Lakes, west of the River St. Lawrence, a departure from the ancient provincial char- ters, with regard to those boundaries : That one would vainly attempt to explain why, if the intention was to retain the ancient provincial boundary, Mitchell's Map, published in 1755, and consequently an- , terior to the Proclamation of 1763, and to the Quebec act 15 of 1774, was precisely the one used in the negotiation of 1783: That Great Britain proposed, at first, the River Piscata- qua as the Eastern boundary of the United States ; and did not subsequently agree to the proposition to cause the boundary of Maine, or Massachusetts Bay, to be as- certained at a later period : That the Treaty of Ghent stipulated for a new exami- nation on the spot, which could not be made applicable to an historical or administrative boundary; And that, therefore, the ancient delimitation of the British Provinces, does not, eitiier, aftbrd tiie basis of a decision : That the longitude of the Nortii-wcst angle of Nova Scotia, which ought to coincide with that of the source of the St. Croix river, was determined only by the Dec- laration of 1798, which indicated that river: That the Treaty of Friendship, Commerce and Nav- igation of 1794, alludes to the doubt which had arisen with respect to the River St. Croi.\, and that the first instructions of the Congress, at the time of the nego- tiations which resulted in the Treaty of 17S3, locate the said angle at the source of the River St. John : That the latitude of that angle is upon the banks of the St. Lawrence, according to Mitchell's Map, which is acknowledged to have regulated the combined and offi- cial labors of the negotiators of the Treaty of 17S3; whereas, agreeably to the delimitation of the Government of Quebec, it is to be looked for at the highlands which divide the rivers that empty themselves into the River St. Lawrence, fronr those which fall into the sea : That the nature of the ground east of the before men- tioned angle not having been indicated by the Treaty of 1783, no argument can be drawn from it to locate that angle at one place in preference to another : That, at all events, if it were deemed proper to place it nearer to the source of the River St. Croix, and look for it, at Mars Hill, for instance, it would be so much the more possible that the boundary of New Brunswick drawn thence northeastwardly would give to that Province sev- eral northwest angles, situated farther north and east, according to their greater remoteness from Mars Hill, that the number of degrees of the angle referred to in the Treaty has not been mentioned : 16 That, consequently, the north-west angle of Nova Sco- tia, here alluded to, having been unknown in 1783, and the Treaty of Ghent having again declared it to be unas- certained, the mention of that historical angle in the Treaty of 1783 is to be considered as a petition of prin- ciple (petition de principe) affording no basis for a de- cision, whereas, if considered as a topographical point, having reference to the definition, viz : " that angle which is formed by a line drawn due north from the source of the St. Croix, River to the highlands," it forms simply the extremity of the line "along the said highlands, which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the At- lantic Ocean," — an extremity which a reference to the northwest angle of Nova Scotia does not contribute to ascertain, and which still remaining, itself, to be found, cannot lead to the discovery of the line which it is to terminate : Lastly, that the arguments deduced from the rights of Sovereignty exercised over the Fief of Madawaska and over the Madawaska settlement — even admitting that such exercise were sufficiently proved — cannot decide the question, for the reason that those two settlements only embrace a portion of the territory in dispute, and that the High Interested Parties have acknowledged the country lying between the two lines respectively claimed by them, as constituting a subject of contestation, and that, therefore, possession cannot be considered as dero- gating from the right, and that if the ancient delimitation of the Provinces be set aside, which is adduced in sup- port of the line claimed at the North of the river St. John, and especially that which is mentioned in the Proclama- tion of 1763, and in the Quebec act of 1774, no argument can be admitted in support of the line claimed at the South of the river St. John, which would tend to prove that such part of the territory in dispute belongs to Can- ada or to New Brunswick. Considering, That the question divested of the incon- clusive arguments drawn from the nature, more or less hilly of the ground, — from the ancient delimitation of the Provinces, from the Northwest angle of Nova Scotia, and from the actual possession, resolves itself, in the end, to these : Which is the line drawn due North from the source 17 •of llip river St. Croix, and which is tlie ground, no matter wlictlicr hilly and elevated, or not, which from that line to the northwesternmost head of Connecticut river, di- vides the rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean ; That the High Interested Parties only agree upon the fact that the boundary sought for must be determined by such a line, and by such a ground ; that they further agree, since the Declaration of 1798, as to the answer to be given to the first question, with the exception of the latitude at which the line drawn due North from the source of the St. Croix river is to terminate ; that said latitude coincides with the extremity of the ground which, ■from that line to the northwesternmost source of Connec- ticut river divides the rivers which empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean : and that, therefore, it only remains to ascertain that ground : That on entering upon this operation, it is discovered, •on the one hand, First, that if, by adopting the line claimed at the North of the river St. John, Great Britain cannot be considered as obtaining a territory of less value than if she had ac- cepted, in 1783 the river St. John as her frontier, taking into view the situation of the country situated between the rivers St. John and St. Croix in the vicinity of the sea, and the possession of both banks of the river St. John in the lower part of its course, said equivalent wonld, nevertheless be destroyed by the interruption of the communication between Lower Canada and New Brunswick, especially between Quebec and Fredericton ; and one would vainly seek to discover what motives could have determined the Court of London to consent to such an interruption. That if, in the second place, in contra-distinction to the rivers that empty themselves into the river St. Law- rence, it had been proper, agreeably to the language ordinarily used in geography, to comprehend the rivers falling into the Bays of Fundy and des Chaleur with those emptying themselves directly into the Atlantic Ocean, in the generical denomination of rivers falling into the Atlantic Ocean, it would be hazardous to include into the species belonging to that class, the rivers St. John and 3 IS Restigouche, which the line claimed at the north of the river St. John divides immediately from rivers emptying themselves into the river St. Lawrence, nor with other rivers falling into the Atlantic Ocean, but alone ; and thus to apply, in interpreting the delimitation established by a Treaty, where each word must have a meaning, to two exclusively special cases, and where no mention is made of the genus (genre), a generical expression which would ascribe to them a broader meaning, or which, if extended to the Schoodiac Lakes, the Penobscot and the Kennebec, which empty themselves directly into the At- lantic Ocean, would establish the principle that the Trea- ty of 17S3 meant highlands which divide as well mediate- ly as immediately, the rivers that empty themselves into the river St. Lawrence from those which fall into the At- lantic Ocean — a principal equally realized by both lines. Thirdly: That the line claimed at the north of the riv- er St. John does not divide, even immediately the rivers that empty themselves into the river St. Lawrence from the rivers St. John and Restigouche, but only rivers that empty themselves into the St. John and Restigouche, with the exception of the last part of said line, near the sources of the river St. John, and that hence, in order to reach the Atlantic Ocean, the rivers divide by that line from those that empty themselves into the river St. Law- rence, each need two intermediate channels, to wit : the ones, the river St. John and the Bay of Fundy, and the others, the river Restigouche, and the Bay of Chaleur : And on the other hand, that it cannot be sufficiently explained how, if the high Contracting Parties intended, in 1783, to establish the boundary at the South of the river St. John, that river, to which the territory in dispute is in a great measure, indebted for its distinctive charac- ter, has beefi neutralized and set aside : That the verb "divide" appears to require the conti- guity of the objects to be "divided :" That the said boundary forms at its western extremity, only, the immediate separation between the river Metjar- mettee, and the northwesternmost head of the Penobscot, and divides, mediately, only the rivers that empty them- selves into the river St. Lawrence from the waters of the Kennebec, Penobscot and Schoodic Lakes ; while the boundary claimed at the north of the river St. John di- 19 videis, immediately, the waters of the rivers Restigouche and St. John, and mediately, the Schoodic lakes, and the waters of the rivers Penobscot and Kennebec, from the rivers that empty themselves into the river St. Lawrence, to wit : the rivers Beaver, Metis, Rimousky, Trois, Pis- toles, Green, Du Loup, Kamouraska, Quelle, Bras St. Nicholas, Du Sud, La Famine and Chaudiere. That even setting aside the rivers Restigouche and St. John, for the reason that they could not be considered as falling into the Atlantic Ocean, the northern line would still be as near to the Schoodic lakes, and to the waters of the Penobscot and of the Kennebec, as the southern line would be to the rivers Beaver, Metis, Rimousky and others that empty themselves into the river St. Lawrence, and would, as well as the other, form a mediate separa- tion between these and the rivers falling into the Atlantic Ocean. That the prior intersections of the southern boundary by a line drawn due North from the source of the St. Croix river, could only secure to it an accessary advan- tage over the other, in case both the one and the other boundary should combine, in the same degree, the quali- ties required by the Treaties : And the fate assigned by that of 1783 to the Connec- ticut, and even to the St. Lawrence, precludes the sup- position that the two Powers could have intended to sur- render the whole course of each river, from its source to its mouth, to the share of either the one or the other : Considering That, after what precedes, the arguments adduced on either side, and the documents exhibited in support of them, cannot be considered as sufficiently pre- ponderating to determine a preference in favor of one of the two lines respectively claimed by the High Interested Parties, as boundaries of their possessions from the source of the river St. Croix to the Northwesternmost head of Connecticut River ; and that the nature of the difference and the vague and not sufficiently determinate stipula- tions of the Treaty of 1783, do not permit to adjudge either of those lines to one of the said Parties, without wounding the principles of law and equity, with regard to the other ; Considering That, as has already been said, the ques- tion resolves itself into a selection to be made of aground dividing the rivers that empty themselves into the rifer St. Lawrence, from those that fall into the Atlantic- Ocean : that the High Interested Parties are agreed with regard to the course of the streams delineated by com- mon accord on the Map A. and aflbrding the only basis of a decision ; And that, therefore, the circumstances upon which such decision could not be further elucidated by means of fresh topographical investigation, nor by the produc- tion of additional documents; We are of opinion, That it will be suitable [il convien- dra] to adopt as the boundary of the two States a line drawn due north from the source of the river St. Croix, to the point where it intersects the middle of t!)e thal- weg (*) of the river St. John, thence the middle of the thalweg of that river, ascending it, to the point where the river St. Francis empties itself into the river St. John, thence the middle of the thalweg of the river St. Francis, ascending it, to the source of its soutliwesternmost branch, which source we indicate, on the Map A, by the letter X, authenticated by the signature of our Minister of Foreign Affairs, thence a line drawn due West, to the point where it unites with the line claimed by the United States of America and delineated on the Map A, thence said line to the point at which according to said Map, it coincides with that claimed by Great Britain, and thence the line traced on the Map by the two powers, to trie northwest- ernmost source of Connecticut river; As regards the second point, to wit : the question, which is the northwesternmost head of Connecticut river: Considering: That, in order to solve this question, it is necessary to choose between Connecticut-Lake River, Perry's Stream, Indian Stream and Hall's Stream : Considering : That, according to the usage adopted in Geography, the source and the bed of a river are denoted by the name of the river which is attached to such source and to such bed, and by their greater relative importance, as compared to that of other waters communicating with said river : Considering: That an official letter of 1772 already (*) Thalweg — a German compound word — That, valley, and VVeg, way. It means here the deepest channel of the river. 21 mentions the name of Hall's Brook : and that in an offi- cial letter, of subsequent date in the same year, Hall's Brook is represented as a small river falling into the Con- necticut : That the river in wiiich Connecticut Lake is situated appears more considerable than either Hall's, Indian or Perry's Stream : that Connecticut Lake and the two Lakes situated northward of it, seem to ascribe to it a greater volume of water than to die other three rivers: and that by admitting it to be the bed of the Connecticut, the course of that river is extended farther than it would be if a preference were given to either of the other three rivers : Lastly, that the Map A having been recognized by the Convention of 1827, as indicating the courses of streams, the authority of that Map would likewise seem to extend to their appellation, since in case of dispute, such name of river, or lake, respecting which the parties were not agreed, may have been omitted ; that said Map mentions Connecticut Lake, and that the name of Connecticut Lake implies the applicability of the name of Connecticut to the river which flows through the said Lake : ire are of opinion : That the stream situated farthest to the northwest, among those which fall into the north- ernmost of the three lakes the last of which bears the name of Connecticut Lake must be considered as the iiorthwesternmost head of Connecticut river. And as to the third point, to wit: the question, which is the boundary to be traced from the river Connecticut, along the parallel of the 45th degree of North Latitude, to the river St. Lawrence, named in the Treaties Iroquois, and Cataraguy : Considering : That the High Interested Parties differ in opinion as to the question — Whether the Treaties re- quire a fresh survey of the whole line of boundary from the river Connecticut to the river St. Lawrence, named in the Treaties Iroquois or Cataraguy, or simply the com- pletion of the ancient provincial surveys. Considering : That the fifth article of the Treaty of Ghent of 1814, does not stipulate that such portion of the boundaries which may not have hitherto been surveyed, shall be surveyed; but declares that the boundaries have not been, and establishes that they shall be, surveyed : 22 That, in efl'ect, such survey ought, in the relations be- tween the two Powers, to be considered as not having been made from the Connecticut to the river St. Law- rence, named in the Treaties Iroquois or Cataraguy, since the ancient survey was found to be incorrect, and had been ordered, not by a common accord of the two pow- ers, but by the ancient Provincial authorities : That in determining the latitude of places, it is cus- tomary to follow the principle of the observed latitude : And that the Government of the United States of America has erected certain fortifications at the place called Rouses' Point, under impression that the ground formed part of their territory — an impression sufficiently authorized by the circumstance that the line had, until then, been reputed to correspond with the 4^th degree of North Latitude : JVe are of opinion : That it will be suitable [il con- viendra] to proceed to fresh operations to measure the observed latitude, in order to mark out the boundary from the river Connecticut along the parallel of the 45th degree of North latitude to the river St. Lawrence, nam- ed in the Treaties Iroquois or Cataraguy, in such a man- ner, however, that, in all cases, at the place called Rouses' Point, the territory of the United States of America shall extend to the fort erected at that place, and shall include said fort and its Kilometrical radius [rayon Kilometrique.] Thus done and given under our Royal Seal, at the Hague, this tenth day of January, in the year of our Lord one thousand eight hundred and thirty one, and of our Reign, the eighteenth. (Signed) WILLIAM. The Minister of Foreign Affairs. (Signed) Vekstolk de Soelen. 23 (C.) (copy.) The Hague, 12 January, 1831. The undersigned. Minister Plenipotentiary and Envoy Extraordinary of tiie United States of America, liad the honor to receive from the hands of his Majesty, the King of the Netherlands, on the tenth inst. a document pur- porting to be an expression of his opinion on the sev- eral points submitted to him as Arbiter, relative to cer- tain portions of the boundary of the United States. In a period of much difficulty, his Majesty has had the good- ness, for the purpose of conciliating conflicting claims and pretensions, to devote to the high parties interested, a time that must have been precious to himself and peo- ple. It is with extreme regret therefore, that the under- signed, in order to prevent all misconception, and to vin- dicate the rights of his Government, feels himself com- pelled to call the attention of his Excellency, the Baron Verstolk Van Soelen, his Majesty's Minister of Foreign Affairs, again to the subject. But, while, on the 6ne hand, in adverting to certain views and considerations, which, seem in some measure, perhaps, to have escaped observation, the undersigned will deem it necessary to do so with simplicity and frankness; he could not, on the other, be wanting in the expressions of a most respectful deference for his Majesty, the Arbiter. The language of the Treaty, which has given rise to the contestation between the United States and Great Britain, is, "And that all disputes which might arise in future on the subject of the boundaries of the said Uni- ted States, may be prevented, it is hereby agreed and declared, that the following are and shall be their boun- daries, viz : from the north west angle of Nova Sco- tia, viz : that angle which is formed by a line drawn due north from the source of the 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 24 Ocean, to the nortliwesternmost head ol' Connecticut river; thence, down along the middle of that river to the forty fifth degree of north latitude ; from thence by a line due west on said latitude, until it strikes the river Iroquois or Cataraguy *****. East, by a line to be drawn along the middle of the river St. Croix, from its mouth in the Bay of Fundy, to its source ; and from its source directly north, to the aforesaid highlands, which divide the rivers that fall into the Atlantic Ocean, from those which fall into the river St. Lawrence." The man- ner of carrying this apparently exceedingly definite and lucid description of boundary into effect, by running the line as described, and marking the same on the surface of the earth, was the subject, the sole exclusive subject, sub- mitted by the convention of Sept. 1827, in pursuance of the treaty of Ghent, 1814, to an Arbiter. If on investiga- tion, that Arbiter found the language of treaty, in his opinion, inapplicable to, and wholly inconsistent with, the topography of the country, so that the treaty of 1 783, in regard to its description of boundary, could not be exe- cuted according to its own express stipulations, no author- ity whatever was conferred upon him to determine or consider what practicable boundary line should, in such case, be substituted and established. Such a question ©rboundary, as is here supposed, the United States of America would, it is believed, submit to the definite de- ■cisionofno sovereign. And in the case submitted to his Majesty, the King of the Netherlands, the United States, in forbearing to delegate any such power, were not in- fluenced by any want of respect for that distinguished monarch. They have on the contrary, given him the highest and most signal proofs of their consideration and confidence. In the present case especially, as any revision or substitution of boundary whatever, had been steadily and in a spirit of unalterable determination, re- sisted at Ghent and at Washington, they had not antici- pated the possibility of there being any occasion for del- egating such powers. Among the questions to which the language of the treaty of 1783, already quoted, gave rise between the high parties interested, is the following, viz: where at a point due north from the source of the river St. Croix, are " the highlands which divide the rivers, that empty 25 tliemselves into tlie river St. Lawrence, from those that fall into the Atlantic Ocean," at which same point on said highlands was also to be found the northwest angle of the l»ng established, well known, and distinctly defined Brit- ish Province of Nova Scotia. On the southern border of the river St. Lawrence, and at the average distance from it of less than thirty English miles, tiiere is an elevated range or continuation of bro- ken highland, extending from Cape Rosieres, southwes- terly to the sources of the Connecticut river, forming the southern border of the basin of the St. Lawrence and the ligne des versants of the rivers emptying into it. The same highlands form also the ligne des versants, on the north of the river Resligouche, emptying itself into the Bay des Chaleur, the river St. John with its northerly and westerly branches emptying into the Bay of Fundy, the river Penobscot with its northwesterly branches emp- tying into the bay of Penobscot, the rivers Kennebec and Androscoggin, whose united waters empty into the Bay of Sagadahock, and the river Connecticut emptying into the Bay usually called Long Island Sound. These Bays are all open arms of the sea or Atlantic Ocean ; are designa- ted by their names on Mitchell's map; and with the sin- gle exception of Sagadahock, are all equally well known, and usually designated by their appropriate names. This ligne des versants constitutes the highlands of the treaty, as claimed by the United States. There is another ligne des versants, which Great Bri- tain claims as the highlands of the treaty. It is the divid- ing ridge, that bounds the southern side of the basin of the river St. John, and divides the streams, that flow into tlie river St. John, from those which flow into the Penob- scot and St. Croix. No river flows from this dividing ridge into the river St. Lawrence. On the contrary, nearly the whole of the basins of the St. John and Resti- gouche intervene. The source of the St. Croix also is in this very ligne des versants, and less than an English mile distant from the source of a tributary stream of the St. John. This proximity reducing the due north line of the treaty, as it were, to a point, compelled the provincial agents of the British Government to extend the due north line over this dividing ridge into the basin of the St. John, crossing its tributary streams to the distance of about for- 4 26 ty miles from tlie source of the St. Croix, to the vicinity of an isolated hill between the tributary streams of the St. John. Connecting that isolated hill with the ligne des versants, as just described, by passing between said tri- butary streams, they claimed it as constituting the high- lands of the treaty. These two ranges of highlands as thus described, the one contended for by the United States, and the other by Great Britain, his Majesty the Arbiter, regards as com- porting equally well in all respects, with the language of the treaty. It is not the intention of the undersigned in this place, to question in the slightest degree the cor- rectness of his Majesty's conclusion. But when the Arbiter proceeds to say, that it would be suitable to run the line due north, from the source of the river St. Croix, not "to the highlands which divide the rivers that fall into the Atlantic Ocean, from those which fall into the river St. Lawrence," but to the centre of the river St. John, thence to pass up said river to the mouth of the river St. Francis, thence up the river St. Francis to the source of its southwesternmost branch, and from thence by a line drawn west unto the point where it intersects the line of the highlands as claimed by the United States, and only from thence to pass " along said high- lands, which divide the rivers, that fall into the At- lantic Ocean, from those which fall into the river St. Lawrence, to the northwesternmost head of Connecticut river," — thus abandoning altogether the boundaries of the treaty, and substituting for them a distinct and different line of demarcation, it becomes the duty of the under- signed, with the most perfect respect for the friendly views of the Arbiter, to enter a protest against the pro- ceeding, as constituting a departure from the power del- egated by the high parties interested, in order that the rights and interests of the United States may not be sup- posed to be committed by any presumed acquiescence on the part of their representative near his Majesty the King' of the Netherlands. The undersigned avails himself of this occasion to re- new to the Baron Verstolk Van Soelen, the assurances of his high consideration. (Signed,) Wm. P. PREBLE. Hia Excellency the Baron VersTolk Van Soelen, i Ats Majesty's Minister of Foreign Affairs. 27 (D.) Extracts of a Despatch from Mr. Preble, to the Secretary of State, dated Idth January, 1831. "With a view to prevent the rights of the United States, and the national faith being in the slightest de- gree committed by the procedure of the Arbiter, and to repel any suggestion of acquiescence, on my part, in be- half of the United States, I addressed to His Majesty's Minister of Foreign Affairs a protest against the proceed- ing, a copy of which I have the honor to enclose, and to which I beg leave to refer. I also, on the 15th addressed a note to Sir Charles Bagot, the British Ambassador at this Court, enclosing to him a copy at the same time of the protest which had been previously addressed by me to the Minister of Foreign Affairs, a copy of which note to Sir Charles Bagot I also have the honor to enclose, and to which I beg leave to refer." " In the course adopted by me, I am fully aware that I have assumed some responsibility ; at the same time, I am also aware that the Government of the United States are not at all committed by any acts of mine, but are left perfectly free to pursue their own measures, according to what may to them seem most fit and expedient." P. S. 17th January. " The answer of the British Ambassador to my note of the 15th, has just been received, a copy of which I have also the honor to enclose, and to which I would refer the President." 28 (E.) Legation of the United States of America. The Hague, 15th January, 1831. The undersigned, Envoy Extraordinary, and Minister Plenipotentiary of the United States of America, near his Majesty the King of the Netherlands, having had tlie honor simultaneously, with his Excellency Sir Charles Bagot, Ambassador Extraordinary, and Plenipotentiary of his Majesty the King of Great Britain, to receive on the tenth instant from the hands of his Majesty, the King of the Netherlands, a document purporting to be the advice of his Majesty, as Arbiter, on the several points submitted to him by Great Britain and the United States, relative to certain portions of the boundaries between their respective territories, has on examination of that document, perceived with great regret, that the distin- guished Arbiter, influenced by a desire to cement the good intelligence, which so happily exists between Great Britain and the United States, finding himself unable to decide between their conflicting claims, has departed from the powers delegated to the Arbiter, by the Con- vention of 29th September, 1827, and the treaty of Ghent of 1814 — The undersigned, therefore, felt it his duty, in order that the good faith of his Government, its rights and interests might not be supposed to be committed, by any presumed acquiescence on his part in the procedure, to address to his Excellency the Baron Verstolk Van Soelen, his Netherland's Majesty's Minister of Foreign affairs, a protest in behalf of the Government of the Uni- ted States, a copy of which protest the undersigned has the honor to enclose for the information of Sir Charles Bagot. Having performed this duty, the undersigned considers the whole subject, so far as the United States, and the further measures to JDe adopted by them are con- cerned, as reverting to the Government of the United States at Washington. The undersigned avails himself of this occasion to ten- 29 der to his Excellency, Sir Charles Bagot, Ambassador Extraordinary and Plenipotentiary of his Majesty, the King of Great Britain, the assurances of his most distin- guished consideration. (Signed,) Wm. p. PREBLE. His Excellency, Sir Charles Bagot, Ambassador Extraordinary and Plenipotentiary of the S. M. the King of Great Britain. 30 (E.) COPY. The Hague, January 17, 1831. The undersigned, His Britannic Majesty's Ambassador E.\traordinary and Plenipotentiary, has received the note, which his Excellency Mr. Preble, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, did him the honor to address to him, on the 25th instant, enclosing to him for his information the copy of a note, which his Excellency had thought it his duty to address on the 12th instant to His Netherland Majesty's Minister of Foreign Affairs, protesting in the name of his Government, against the competency of His Majesty to pronounce, under the powers delegated to His Majesty, as Arbitrator in the question of disputed boun- dary between Great Britain and the United States, by the Convention of the 29th of September, 1827, and the Treaty of Ghent of 1814, a decision in the nature of that which His Excellency and the undersigned had the honor simultaneously to receive at the hands of his Majesty on the 10th of this month. The undersigned much regrets that he cannot coincide in the opinion expressed by Mr. Preble in this note, as to the limitations by which His Excellency supposes His Netherland Majesty to have been restricted in the exercise of an arbitration, the main declared object of which was to prevent all disputes which migiit arise in future on the subject of the Boun- daries between Great Britain and the United States, and which the two Governments mutually engaged themselves to consider as final and conclusive. But as the doubt, which Mr. Preble has raised upon this subject, appears to the undersigned, and, as it should seem, to Mr. Preble also, to be one upon which their respective Governments have alone the power to decide, the undersigned will confine himself at present to the expression of his thanks to Mr. Preble, for the obliging communication of His Excellency's note to the Baron de Verstolk, and to the re- quest that his Excellency will accept the assurances of his most distinguished consideration. ^ (Signed,) CHARLES BAGOT. His Excellency, W. P. Prkblk, Esq. &c. &c.