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rican government. It is necessary to observe, that a new element was interposed in the negotiation. The right of the state of Maine to have a voice in any arrangement, by which the limits of her territory, established by the treaty of 1783, should be affected, was started, in the first place, not in a very decided manner, by Mr. Livingston, and it was afterwards more distinctly asserted and vindicated in the progress of the discussion. As any conventional line to be drawn south of the true line of the treaty would deprive Maine of so much of her territory as it should cut off, it could not, as it was subsequently and very pointedly remarked by Mr. M'Lane, be adoptéd, “unless upon grounds of greater public necessity than at present exists, without the consent of that state.” Had the king of the Netherlands actually undertaken to designate the line which he proposed as the real boundary indicated by the treaty of 1783, it seems to have been considered by Mr. Livingston that this objection, set up on the part of the state of Maine, could not have been urged to any effect. This question of state right proved, in the course of the correspondence, to be an element of some importance, and seems, in some manner, to have given a turn to the negotiation.
It was intimated, early in the correspondence, by Mr. Livingston, that even if the negotiation, which he, in his first letter to Mr. Bankhead, invited to be opened at Washington, on account, among other reasons, of being in the vicinity of the territory in dispute, should fail to result in an agreement upon the true line designated by the treaty of 1783, means would probably be found of avoiding the constitutional difficulties that had hitherto attended “the establishment of a boundary more convenient to both parties than that designated by the treaty, or that recommended by the king of the Netherlands. This was in consequence, as he signified, of an arrangement then going on between the United States and the state of Maine, by which the government of the United States expected to be clothed with more ample powers than it had previously possessed to effect that end. In order to explain what might otherwise seem to be a strain of complaisance, on the part of Mr. Livingston, in laying such stress on constitutional impediments, which had prevented the establishment of a more convenient boundary to both parties than that which was designed by the treaty no embarrassment of which kind he seemed to think need interfere with going through the form, at least, of trying to find that fixed by the treaty—it is fit to add, that he also thought the negotiation to be opened on this main point should necessarily embrace the right of the navigation of the St. John, as an object of hardly less consequence than that of the boundary. It does not appear that any particular modification of the
boundary itself, other than in this manner, was contemplated by Mr. Livingston, in relation to the river St. John.
The date of Mr. Livingston's first communication to this effect, addressed to Mr. Bankhead, was in July, 1832. The reply of Sir Charles R. Vaughan-passing a mere formal note of acknowledgment from Mr. Bankhead, delivered in April, 1833-declines to mix up the navigation of the St. John as an ingredient in the question of boundary, although he avows no disinclination on the part of his government to treat it as a matter of separate arrangement, supposing the other to be satisfactorily disposed of. He expresses, however, a curiosity to learn from Mr. Livingston, in the first place, what was the principle of the plan of boundary, which the American government seemed to contemplate as likely to be more convenient to both parties than those which had been previously discussed; and secondly, whether any arrangement, such as Mr. Livingston had alluded to, had been concluded between the general government and Maine, for avoiding the constitutional difficulty. To this enquiry, Mr. Livingston answered that the hopes and anticipations which had been entertained of forming an arrangement, which would enable him to treat for a more convenient boundary, had not been realised; and that the government of the United States could therefore, in that state of things, treat only on the basis of the establishment of the boundary presented by the treaty.
It may not be amiss here, perhaps, to bear in mind the position in which Maine was admitted to stand in regard to this question -together with the arrangement which Mr. Livingston had expected to accomplish towards arriving at a more direct result -in looking at the practical expedient which he afterwards offered to the consideration of the British government, through their minister, for relieving the difficulty. It is further to be premised, that Sir Charles R. Vaughan, apprized that the arrangement, alluded to by Mr. Livingston as in progress during the previous summer, had failed, professed not entirely to comprehend the new view of the subject which had been partially opened, or rather hinted, by Mr. Livingston, and which the latter conceived might lead to a more propitious issue. Without waiting, however, for an answer from the British government, to the overture for treating upon the principle of the treaty boundary, which Sir Charles R. Vaughan undertook to transmit without delay, he at the same time urged Mr. Livingston to propose some more prompt and effective measure for the settlement of the boundary, than a renewal of the experiment to ascertain it according to the original description upon any plan, which, however improved it might appear, did not promise to produce any speedy and satisfactory decision. This
pressing invitation, it will be observed, led to the specific project communicated by Sir Charles R. Vaughan, in a note of May 28th, 1833, and which was presented as a further development of the view proposed in a former note of April 30th, and as embodying, also, the substance of intermediate conversations. The simple point of the proposition, it may be mentioned, was first signified by Mr. Livingston, in his former note, in the following manncr :
“Boundaries of tracts and countries where the region through which the line is to pass is unexplored, are frequently designated by natural objects, the precise situation of which is not known, bụt which are supposed to be in the direction of a particular point of the compass. Where the natural object is found in the designated direction, no question can arise. Where the course will not touch the natural boundary, the rule universally adopted is, not to consider the boundary as one impossible to be traced, but to preserve the natural boundary, and to reach it by the nearest direct course. Thus, if, after more accurate surveys shall have been made, it should be found that the porth course, from the head of the St. Croix, should not reach the highlands which answer the description of those designated in the treaty of 1783, then a direct line from the head of the St. Croix, whatever may be its direction, to such highlands, ought to be adopted, and the line would still be conformable to the treaty.”
The application of the principle to the matter in hand, as solicited by Sir Charles R. Vaughan, is thus surther 'unfolded in Mr. Livingston's subsequent note of May 28th :
“The boundary, as far as the head of the river St. Croix, is ascertained and agreed upon by both nations. The monument erected there is then a fixed point of departure. From thence we have a two-fold description of boundary: a line in a certain direction, and a natural object to which it was supposed the line in that direction would lead; 'a line from the source of the river St. Croix, directly north,' and the highlands which divide the waters ihat flow into the Atlantic ocean from those which flow into the river St. Lawrence. The American government have believed that these two descriptions would coincide, that is to say, that the highlands designated by the treaty would be reached by a north line drawn from the head of the St. Croix. They make no pretensions further east than that line ; but if, on a more accurate survey, it should be found that the north line, mentioned in the treaty, should pass each of the highlands therein described, and that they should be found at some point further west, then the principle to which I refer would apply, to wit: that the direction of the line to connect the two natural boundaries must be altered so as to suit their ascertained position. Thus, in the annexed diagram, suppose A the monument at the head of the St. Croix, AB the north line drawn from them. If the highlands, described in the treaty, should be found in the course of that line, both the descriptions in the treaty would be found to coincide, and the question would be at an end; if, on the contrary, those highlands should be found at C or D, or any other point west of that line, then the eastern boundary of the United States would be the line AC or AD, or any other line drawn directly
from the point A to the place which should be found to answer the description of the highlands mentioned in the treaty."
А It is quite obvious, that this view of the case might have held out to Sir Charles R. Vaughan the prospect of a very simple expedient for getting round or getting rid of what was called the constitutional difficulty, arising from the position of the state of Maine in regard to the question. But it is in its more immediate and important public light, that it is principally to be considered, as the enunciation, in a somewhat authoritative form, of a new practical proposition in regard to the proper application of the description of boundary. in the treaty of 1783 to the face of the earth. In this point of view, we are naturally led, in the first place, to enquire how far it probably comports with the actual intention of the framers of that treaty, understanding, as we are bound to do, that it was not designed in any manner to deal with that description as devoid of meaning; but that the object was, in good faith and honesty, to seek for the true and just exposition of its terms, according to the real state of facts and geography of the land. While we plainly see here on the one hand, the evidence of a sufficient disposition, on the part of our own government, to approach the wishes of the British, in regard to the establishment of a mutually convenient boundary, yet, on the other, we are not disposed to entertain any idea so inconsistent with the high character of those who are charged with our great public affairs, as statesmen and patriots, as to suppose they would be capable of straining a point to subserve any sinister purpose, or that they would wittingly lend their aid to weaken our case as a claim by the force and upon the plain terms of the treaty by any evasive or artificial compromise of the signification of them.
As this proposition terminated the official connection of Mr. Livingston with the question, and, at the same time, necessarily entered into its subsequent treatment in the hands of his
successor, Mr. MʻLane, the present may be a suitable place to pause for a moment, and to scan, in a cursory manner, the ground upon which that learned and lamented statesman undertook to sustain the idea which he suggested; and which, so far as it is not to be looked upon in the light of a diplomatic expedient, certainly does seem to us to be founded in some singular misapprehension. We do not know that any fault is to be found with the principle in the form first stated by Mr. Livingston, as one that is recognized and well fixed in our general system of municipal law, in familiar use and practice, probably, in the courts of this country, and, for aught we know, considered, as afterwards observed, we think, by Mr. Forsyth, as an established rule of boundary before the Revolution—that is to say, that monuments should govern rather than mere lines. But the question here, as elsewhere and always, is, what kind of monument was intended ? whether one of a more or less definite and general character or description ? Now, so far as any single and solid monument was marked or made by the treaty, it was no more nor less than the northwest angle of Nova Scotia; a monument fixed, and to be sought for, rather out of, than in the United States; and one, so far as it bore the character of a monument, to be determined by the known condition of facts and signification of documents existing before the parties, and in their view at the formation of the treaty.
Without taking any great exception, therefore, to the general form of the principle assumed, we are not quite sure that in its actual application the true character of the monument in question has not been rather lost sight of, in the limited and peculiar manner that it was looked at by Mr. Livingston. For the definition of that monument, found in the treaty, is taken by Mr. Livingston to exist, at the same time, in a more distinguished, and, also, a more indeterminate, condition, than it has always been understood, both historically and geographically, to be, as well in Europe as America, not only till the end of the last century, but far into the present. This monument, to wit, the north west angle of Nova Scotia, was never supposed to be any particular peak or height; nor had it, in that point of view, any known and determinate position or elevation; but it was an intersection of that large, long, and broad feature of the country which divides the waters rising in that region, upon the plain and ordinary principles of hydrostatics, into two classes, those flowing into the river St. Lawrence, and those flowing into the Atlantic ocean -as that general course of demarcation should be intersected, by a meridian from the river St. Croix. This geographical species of delimitation has been denominated in that language which forms the conventional dialect of Europe, the point du partage, or more approVOL. XX.--NO. 40.