1831. January 10.

Communication between Lower

Brunswick.

not, which from that line to the northwesternmost head of Connecticut river, divides 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 Connecticut 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 Canada and N. the river St. John, Great Britain cannot be considered as obtaining a territory of less value than if she had accepted 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 would, nevertheless be destroyed by the interruption of the communication between Lower Canada and New Brunswick, especially between Quebec and Frederickton; and one would vainly seek to discover what motives could have determined the court of London to consent to such an interruption:

Rivers empty

'That if, in the second place, in contra-distinction to the ing into the St. rivers that empty themselves into the river St. Lawrence, it

Lawrence and
Atlantic.

had been proper, agreeably to the language ordinarily used in geography, to comprehend the rivers falling into the Bays of Fundy and des Chaleurs 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 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 delineation established

1831.

by a treaty, where each word must have a meaning, to two exclusively special cases, and where no mention is made of January 10. the genus (genre,) a general 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 Atlantic Ocean, would establish the principle that the treaty of 1783 meant highlands which divide as well mediately as immediately, the rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean-a principle equally realized by both lines:

Thirdly: That the line claimed at the north of the river St. River St. John, John does not divide, even immediately the rivers that empty Bay of Fundy,

themselves into the rivers 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 the said line, near the sources of the river St. John, and that hence, in order to reach the Atlantic Ocean, the rivers divided by that line from those that empty themselves into the river St. Lawrence, 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 Chaleurs:

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 character, has been neutralized and set aside:

That the verb "divide" appears to require a contiguity of the objects to be "divided :"

"That the said boundary forms at its western extremity, Boundary at its only, the immediate separation between the river Metjarmette, tys and the northwesternmost head of the Penobscot, and divides, mediately, only the rivers that empty themselves into the river St. Lawrence from the waters of the Kennebec, Penobscot and Schoodiac Lakes; while the boundary claimed at the north of the river St. John divides, immediately, the waters of the rivers Restigouche and St. John, and mediately, the Schoodiac 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, Ri. mousky, Trois, Pistoles, Green, Du Loup, Kamouraska, Quelle, Bras St. Nicholas, Du Sud, La Famine and Chaudiere:

1831.

January 10.

Southern boun

tions.

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 accessory advantage over the other, dary intersec- in case both the one and the other boundary should combine, in the same degree, the qualities required by the treaties: And the fate assigned by that of 1783 to the Connecticut, and even to the St. Lawrence, precludes the supposition that the two powers could have intended to surrender the whole course of each river, from its source to its mouth, to the share of either the one or the other:

Documents insufficient to determine a preference.

Opinion on the course of the

Considering, that, after what precedes the arguments adduced on either side, and the documents exhibited in support of them, cannot be considered as sufficiently preponderating 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 stipulations 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:

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 Schoodiac 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 separation between these and the rivers falling into the Atlantic ocean.

Considering, That, as has already been said, the question resolves itself into a selection to be made of a ground dividing the rivers that empty themselves into the river 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 common accord on the map A. and affording 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 production of additional documents:

We are of opinion, That it will be suitable [il conviendra] to adopt as the boundary of the two states, a line drawn due

1831.

boundary from the St. Croix.

north from the source of the river St. Croix, to the point where it intersects the middle of the thalweg* of the river St. John, January 10. 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 southwesternmost 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 the northwesternmost source of Connecticut river.

As regards the second point, to wit-the question, which is the northwesternmost head of Connecticut river:

N. W. head of

Considering: That, in order to solve that question, it is Question of the necessary to choose between Connecticut lake river, Perry's the Connecticut 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 with that of other waters communicating with said river:

lake river.

Considering: That an official letter of 1772, already men- Hall's Brook, tions the name of Hall's brook; and that in an official letter, of subsequent date in the same year, Hall's brook is represented as a small river falling into the Connecticut:

Indian or Perry

That the river in which Connecticut lake is situated appears Indian more considerable than either Hall's, Indian, or Perry stream; that the Connecticut lake, and the two lakes situated northward of it, seem to ascribe to it a greater volume of water than to the 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

1

1831. January 10.

Award in favor of the

been omitted; that said map contains 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:

We are of opinion: That the stream situated farthest to the most Connecti- northwest, among those which fall in to the northernmost of the three lakes, the last of which bears the name of Connecticut lake, must be considered as the northwesternmost head of Connecticut river.

cut stream.

Further considerations, on a new survey.

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 Iroquoise and Cataraguy.

Considering: That the high interested parties differ in opinion as to the question-whether the treaties require a fresh survey of the whole line of boundary from the river Connecticut to the river St. Lawrence, named in the treaties Iroquoise or Cataraguy, or simply the completion 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:

That, in effect, such survey ought, in the relations between the two powers, to be considered as not having been made from the Connecticut to the river St. Lawrence, named in the treaties Iroquoise or Cataraguy, since the ancient survey was found to be incorrect, and had been ordered, not by a common accord of the two powers, but by the ancient provincial authorities:

That in determining the latitude of places, it is customary to follow the principle of the observed latitude:

Rouses' Point.

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 45th degree of north latitude:

operations ne

Award: Fresh We are of opinion: That it will be suitable [il conviendra] cessary to mark to proceed to fresh operations to measure the observed latithe boundary; tude, in order to mark out the boundary from the river Con

necticut along the parallel of the 45th degree of north latitude to the river St. Lawrence, named in the treaties Iro