their "views both of principles and of fact," that the home. government, deeming the prospect of an adjustment in any other manner "entirely hopeless," determined effectually to intervene; and for that purpose appointed in 1846 a commission composed of Captains Pipon and Henderson, of the royal engineers, and Mr. Johnstone, attorney-general of Nova Scotia, to report on the question whether there was any line that could be drawn which would satisfy "the strict legal claims” of both provinces, and, if no such line could be discovered, to report "how a line could be drawn which would combine the greatest amount of practical convenience to both provinces with the least amount of practical inconvenience to either; adverting at the same time to such interests (if there be any such) as the Empire at large may have in the adjustment of this question." In 1847 Captain Pipon, who died in the preceding year, was succeeded by Major Robinson, also of the royal engineers. During the summers of 1843 and 1847 topographical surveys were made by the engineer officers of the territory in dispute. On July 20, 1848, the three commissioners, Messrs. Robinson, Henderson, and Johnstone, made their report, which is a clear, concise, able statement of the question to which it relates. Referring to the Quebec proclamation of October 7, 1763, the Quebec act of 1774, and the commissions of the governors of Nova Scotia and New Brunswick, as establishing and defining the boundary in dispute, they found (1) that Canada should be bounded on the south "by the north coast of the Bay of Chaleurs as far as its western extremity," and from such western extremity by a line "along certain highlands to the forty-fifth degree of north latitude;" (2) that the "highlands" in question should be those that were described in the proclamation of 1763 as "the highlands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the sea;" and (3) that such high

Mr. Gladstone, colonial secretary, to Earl Catheart, governor-general of Canada, July 2, 1846, Blue Book, "Canada and New Brunswick Boundary," July 11, 1851, p. 81.

2 Blue Book, “Canada and New Brunswick Boundary,” 86.

3 In reply to an intimation on the part of Canada that the word “sea” in the proclamation of 1763 might be read "Atlantic Ocean," the commissioners observed that the word "sea" was "alike appropriate throughout the whole course of the boundary," since it comprehended the Atlantic Ocean, the Bay of Fundy, the Gulf of St. Lawrence, and the Bay of Chaleurs, while the term "Atlantic Ocean" would apply only to "a part of the boundary."

lands existed and were those claimed by New Brunswick. The commissioners therefore reported that a line could be drawn which would satisfy the strict legal claims of each province. But they further reported (1) that, westward of the due-north line from the source of the St. Croix, there lay a tract of country, between the highlands and the boundary of the United States under the treaty of 1842, "which in 1763 formed part of the ancient territory of Sagadahock," and "which, according to the strict legal rights of the provinces, belongs to neither;" (2) that the line of boundary demanded by the strict legal rights of the provinces was at variance with the actual possession of both, and with their mutual advantage and convenience; (3) that each province had exercised jurisdiction and extended its settlements for a considerable distance along the River Restigouche, which had thus practically become to that extent their boundary; (4) that, as an attempt to alter this practical and subsisting division could not fail to be injurious, it would be proper that a large part of the territory north of the Restigouche, though strictly belonging to New Brunswick, should be confirmed to Canada; (5) that a considerable portion of the territory west of the due-north line, and belonging to neither province, might be beneficially assigned to New Brunswick, since it was chiefly settled under the authority of that province, was connected with it by natural communications, and had actually been in its possession and under its jurisdiction. Under their instructions to consider questions of convenience, the commissioners therefore recommended "That New Brunswick should be bounded on the west by the boundary of the United States, as traced by the Commissioners of Boundary under the Treaty of Washington, dated August 1842, from the source of the St. Croix to the outlet of the Pohenagamook, thence north-easterly, by prolonging the straight line which has been laid down on the ground as the boundary of the United States, between the Iron Monument at the northwest branch of the River St. John, and the Iron Monument at the said outlet of Lake Pohenagamook, until the line so prolonged shall reach the parallel of 47° 50′ of north latitude, thence by a line due east to that branch of the Restigouche River called the Kedgewick or Grande Fourche, then along the centre of its stream to the Restigouche River, then down the centre of the stream of the Restigouche River to its mouth in the Bay of Chaleurs, and then through the middle of that bay to the Gulf of St. Lawrence, giving to New Brunswick

the islands in the said Rivers Kedgewick and Restigouche to its mouth at Dalhousie." In explanation of this recommendation the commissioners stated that the territory west of the due-north line, and belonging strictly to neither province, comprised 4,400 square miles, of which the proposed boundary gave 2,300 to New Brunswick and 2,100 to Canada, while of the territory north of the Restigouche strictly belonging to New Brunswick 2,660 square miles were assigned to Canada. The fiefs of Temiscouata and Madawaska, though strenuously contended for by Canada, fell principally to New Brunswick. The commissioners stated that the inhabitants of these seigniories were "few, not exceeding twenty families of poor, humble settlers."

Interprovincial
Arbitration.

The executive council of New Brunswick advised that the recommendation of the commissioners should be "received as an equitable settlement of the question so long pending;" but, as the executive council of Canada found themselves "unable to recognize" its "justice or equity," the British Government suggested that the matter be referred to arbitration. This suggestion was accepted, and it was agreed that the arbitration should be held in London. As arbitrators New Brunswick and Canada respectively selected Dr. Travers Twiss and Thomas Falconer, esq., and these two chose as third arbitrator Judge Stephen Lushington, of the admiralty court. On the 17th of April 1851 Messrs. Lushington and Twiss, Mr. Falconer dissenting, rendered an award, which was duly carried into effect.' By this award New Brunswick is bounded on the west by the boundary of the United States as traced under the treaty of 1842, "from the source of the St. Croix to a point near the outlet of Lake Pech-la-wee-kaa-co-nies, or Lake Beau." From this point the province is bounded by a straight line to a point a mile south of the southernmost point of Long Lake; thence by a straight line to the southernmost point of the fiefs Madawaska and Temiscouata, and along the southeastern boundary of these fiefs to their southeast angle; thence by a meridional line northward till it meets a line running east and west, and tangent to the height of land dividing the waters flowing into the River Rimouski from those tributary to the St. John; thence along this tangent line eastward till it meets another

1 Br. and For. State Papers, XL. 850; XLIV. 685.

meridional line tangent to the height of land dividing waters flowing into the River Rimouski from those flowing into the Restigouche River, thence along this meridional line to the forty eighth parallel of latitude, along that parallel of latitude to the Mistouche River, and down the center of the stream of that river to the Restigouche; thence down the center of the stream of the Restigouche to its mouth in the Bay of Chaleurs, and thence along the middle of that bay to the Gulf of St. Lawrence. By an act of Parliament of August 10, 1857, it is explained that the "River Mistouche" in the award shall be taken to be the stream which crosses the forty-eighth parallel of latitude and from thence flows into the Restigouche, and which is otherwise called the "Patapedia."

The line thus established is substantially the same as that which was recommended by the royal commissioners in 1848, except that it gives the fiefs of Temiscouata and Madawaska to Canada. It was "founded," said Judge Lushington, in a statement of the grounds of the award, "as far as possible upon the principle of possession, a principle laid down by Lord Hardwicke in the Baltimore case as the true principle to govern all questions of disputed boundary."

1 Br. and For. State Papers, XLVII. 523. See, for the joint report of Commissioners Smith and Estcourt on the Northeastern Boundary, Richardson's Messages and Papers of the Presidents, IV. 170.

5627-11

CHAPTER V.

BOUNDARY THROUGH THE RIVER ST. LAWRENCE AND LAKES ONTARIO, ERIE, AND HURON: COMMISSION UNDER ARTICLE VI. OF THE TREATY OF GHENT.

ary.

Having traced the settlement of the eastern Course of the Bound- and northern boundary of the United States from the Bay of Fundy to "the point where the forty-fifth degree of north latitude strikes the river Iroquois or Cataraquy," we now proceed to extend the line from that point westward. By the treaty of 1783 the boundary from the point in question to Lake Superior is declared to be "along the middle of said river (Iroquois or Cataraquy) into Lake Ontario, through the middle of said lake until it strikes the communication by water between that lake and Lake Erie, thence along the middle of said communication into Lake Erie, through the middle of said lake until it arrives at the water communication into Lake Huron, thence through the middle of said Lake to the water communication between that lake and Lake Superior."

tration.

By the sixth article of the Treaty of Ghent Provision for Arbi- it was recited that "doubts have arisen what was the middle of the said river, lakes and water communications, and whether certain islands lying in the same were within the dominions of His Britannic Majesty or of the United States;" and in order that these doubts might be finally decided, it was provided that they should be referred to two commissioners, to be appointed, sworn, and authorized to act, except as otherwise specified, in the same manner as the commissioners under Article V. It was further provided that the commissioners should meet in the first instance at Albany, in the State of New York, and should have power to adjourn

1 Supra, p. 70.