AUTHORITIES AND OPINIONS ON EVIDENTIAL VALUE OF MAPS.
MEMORANDUM OF AUTHORITIES AND OPINIONS ON EVIDENTIAL VALUE OF MAPS.
I.—Dispute Concerning the Limits of Nova Scotia or Acadia, 1750-1755.1
By the 12th article of the Treaty of Utrecht, 1713, France yielded and made over to Great Britain, in the most ample manner and form, “all Nova Scotia or Acadia, with its ancient boundaries,” etc. A dispute afterwards arose between the two Crowns with regard to the limits of Nova Scotia or Acadia, as so yielded to the Crown of Great Britain. In July, 1749, it was agreed between the two Crowns that commissaries should be appointed to define, in an amicable spirit, the boundaries between the colonial possessions of Great Britain and France in North America. General William Shirely, Captain-General and Commander-in-Chief of the Province of Massachusetts Bay, and Mr. William Mildmay, were appointed commissaries on behalf of Great Britain. The commissaries held sittings in Paris from 1750 till May, 1755. Negotiations were suspended preliminary to the outbreak of the Seven Years' War on the 17th May, 1756. Several memorials were exchanged between the British and French commissaries upon the question of the limits of Acadia.
In a memorial dated 11th January, 1751, the British Commissaries, after referring to the evidence afforded by certain maps in support of their contention, said :
“But for these ..... there is no occasion to cite them after the Proofs of an higher Nature already produced, and Maps are appeal'd to by us only in answer to the Assertion, that Charts of all Nations confine the Limits of Acadia or Nova Scotia precisely to the Peninsula ;
1 Memorial of the English and French Commissaries, Nova Scotia (London : 1755) Vol. I, pp. 71-33, 263-265, 275-279.
for Maps are from the Nature of them a very slight Evidence, Geographers often lay them down 'upon incorrect Surveys, copying the Mistakes of one another ; and if the Surveys be correct, the Maps taken from them, tho' they may show the true Position of a Country, the Situation of Islands and Towns, and the Course of Rivers, yet can never determine the Limits of a Territory, which depend entirely upon authentic Proof ; and the Proofs in that Case, upon which the Maps should be founded to give them any Weight, would be themselves a better Evidence, and therefore ought to be produced in a Dispute of this Nature, in which the Rights of Kingdom are concern'd.”
In their answer to the French memorial the English Commissaries made the following additional observations on the subject of the map evidence :
“In Treating of Maps it may not be improper to remind the French Commissaries, that the Commissaries of the King of Great Britain were not the first who appealed to these as an Authority in the present Discussion : That they never have cited them but to correct Mistakes made by the French Commissaries : That they in their last Memorial disclaimed any great Reliance upon the Evidence of Maps, even where they have proved them to favour the Claim of the King of Great Britain. And that they should not at this Time have gone into a more minute Consideration of them, if the French Commissaries had not made it necessary, by again giving a much greater credit to Maps than they deserve, and by affecting to make them seem material in the Discussion of the Point before us ; and if they did not themselves judge it to be essential, not to leave any one of the Proofs urged by the French Commissaries in Support of their system without a sufficient Confutation.
“The three English Maps cited by the French Commissaries are, one by Mr. Halley, another by Mr. Popple, and a third by Mr. Salmon ; and to give them the greater Weight, they are very careful to do Justice to the great Knowledge of Mr. Halley in Geography and Astronomy, and they observe that Mr. Popple is one of those who have 'travaille sur les titres.' The fact is, that Acadia is marked in Mr. Halley's Map within the Peninsula near the Sea-Coast, and Nova Scotia near the Isthmus, from which it appears, that he did not think Acadia was confined to the South-east Part of the Peninsula, and that he was very little attentive to the Position of Countries in his Map ; his only View having been to shew the several Variations of the Needle in the several Degrees of Longitude there marked ; the whole Map full of geographical Errors proves this to have been his Design, and the French Commissaries chose an unfortunate Topic to commend Mr. Halley upon, when they cited this Chart as a Specimen of his profound Knowledge in Geography ; however strong an Example this very Map may be of that Gentleman's great Skill in Astronomy, and however perfect it may be in the Light and for the Purpose he designed it.
“As to Mr. Popple's Map, the French Commissaries have no other Authority from any Circumstances attending the Publication of that Map, for supposing that it was made under the Inspection or Patronage of the Board of Trade, or for representing Mr. Popple as a Person whose Situation should given additional Credit to it ; than that Mr. Popple has said in the Margin of his Map, that he undertook that Work with the Approbation of the Lords Commissioners of Trade and Plantations, who might very well approve of such an Undertaking but who never superintended or approved of Mr. Popple's Manner of executing it. Mr. Popple inserted this marginal Note meerly to secure a better Reception to his Work ; he does not pretend in it, that the then Board of Trade had ever approved of any thing farther than the Undertaking, his Map was framed according to his own particular Notions ; he published it upon his own single Authority : the Board of Trade at the Time gave it no extraordinary Sanction. It is inconsistent with the very Records it pretends to have copied ; it came into the World as the Performance of a single Person ; it has ever been thought in Great Britain to be a very incorrect Map, and has never in any Negociation between the two Crowns been appealed to by Great Britain, as being correct, or a Map of any Authority.
“But if the French Commissaries could make this Map to have been the Work of a Servant of the English Government directed at the time by the Board of Trade, what Evidence could they draw from it, of any Effect in the present Discussion ? Mr. Popple has marked the Peninsula with the Name of Acadia, and the whole Country westward as far as the Southern Bank of the River St. Lawrence with the Name of Nova Scotia, of which he makes St. Croix the western Boundary, which shows he thought the Country of Acadia or Nova Scotia extended from the southern Bank of the River St. Lawrence to St. Croix, and makes his Map but a very slight Authority for the French Commissaries, who confine Acadia or Nova Scotia to the south-eastern Part of the Peninsula, or for the Opinion of the Sieur Durand, who confines it to the whole of the Peninsula only.”
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II.—The Oregon Boundary Controversy, 1817-1846.1
In his treatise entitled “The Oregon Question Examined” (London, 1846), Sir Travers Twiss dealt with the question of the evidential value of maps as follows :—
“Maps are but pictorial representations of supposed territorial limits, the evidence for which must be sought for elsewhere. There
1“ The Oregon Question Examined.” By Sir Charles Travers Twiss. London, 1846, pp. 288, 305-306, vi-viii.
may be cases, it is true, where maps may be evidence ; when, for instance, it has been specially provided that a particular map, such as Melish's Map of North America, shall be the basis of a convention ; but it is to be regretted that maps of unsurveyed districts should ever have been introduced into diplomatic discussions, where limits conformable to convenient physical outlines, such as headlands or watercourses, are really sought for, and are understood to be the subject of negotiation. The pictorial features of a country, which, in such cases, have been frequently assumed as the basis of the negotiation, have not unusually caused greater embarrassment to both the parties in the subsequent attempt to reconcile them with the natural features, than the original question in dispute, to which they were supposed to have furnished a solution. That the name of Nouvelle France should have been applied by French authors and in French maps to the country as far as the shores of the Pacific Ocean, was as much to be expected as that the name of California should have been extended by the Spaniards to the entire north-west coast of America. which we know to have been the fact, from the negotiations in the Nootka Sound controversy.”
Referring in a later chapter to the claim illustrated by some French geographers to the westwardly extension of New France to the Pacific Ocean, and remarking that this claim required “some better evidence than the maps of the French geographers,” Sir Travers Twiss proceeds to say :—
“A map can furnish no proof of territorial title ; it may illustrate a claim, but it cannot prove it. The proof must be derived from facts, which the law of nations recognises as founding a title to territory. Maps, as such, that is, when they have not had a special character attached to them by treaties, merely represent the opinions of the geographers who have constructed them, which opinions are frequently founded on fictitious or erroneous statements : e.g., the map of the discoveries in North America, by Ph. Busche and J. N. de Lisle, in 1750, in which portions of the west coast of America were delineated in accordance with De Fonte's story (supra. Ch. IV), and the maps of north-west America at the end of the seventeenth and beginning of the eighteenth centuries, which represent California as lately ascertained to be an island. An examination of the collection in the King's library at the British Museum, will remove all scepticism on this head.”
In his preface to this treatise Sir Travers Twiss added the following remarks on the subject of maps :
“Some observations have been made in Chapter XII. and other places, upon the general futility of the argument from maps in the case of disputed territory. The late negotiations at Washington have furnished an opposite illustration of the truth of the Author's remarks. Mr. Buchanan, towards the conclusion of his last letter to Mr. Pakenham,
addressed an argument to the British Minister, of the kind known to logicians as the argumentum ad verecundian :— 'Even British geographers have not doubted our title to the territory in dispute. There is a large and splendid globe now in the Department of the State, recently received from London, and published by Maltby and Co., manufacturers and publishers to “The Society for the Diffusion of Useful Knowledge,” which assigns this territory to the United States.' The history, however, of this globe is rather curious. It was ordered of Mr. Malby (not Maltby) for the Department of State at Washington, before Mr. Everett quitted his post of Minister of the United States in this country. It no doubt deserves the commendation bestowed upon it by Mr. Buchanan, for Mr. Malby manufactures excellent globes ; but the globe sent to Washington was not made from the plates used on the globes published under the sanction of The Society for the Diffusion of Useful Knowledge,' though this is not said by way of disparagement to it. The Society, in its maps, has carried the boundary line west of the Rocky Mountains, along the 49th parallel to the Columbia River, and thence along that river to the sea : but in its globes the line is not marked beyond the Rocky Mountains. Mr. Malby, knowing that the globe ordered of him was intended for the Department of State at Washington, was led to suppose that it would be more satisfactorily completed, as it was an American order, if he coloured in, for it is not engraved, the boundary line proposed by the Commissioners of the United States. The author would apologise for discussing so trifling a circumstance, had not the authorities of the United States considered the fact of sufficient importance to ground a serious argument upon it.”
III.—Ontario-Manitoba Boundary Dispute, 1884.1
In his argument before the Judicial Committee of the Privy Council, Mr. Dalton McCarthy, Q.C., (of counsel for Manitoba), introduced his observations upon the maps which had been put in on either side, by the following remarks :
“Now, my Lord, I come to the maps, which I may just as well refer to now. And the first observation I make with regard to them is this. I am going to refer to the maps put in by the other side, and also to deal with those we put in, bearing upon this question. It was stated (and I ask our Lordships to adopt it as my argument if I cannot read it) by those who have been concerned in investigations of this kind, that there is nothing more deceptive than a map. Nothing has given rise to greater trouble in the settlement of international boundaries than reliance being placed upon maps. Of course it is a different thing if a map is
1 Proceedings before the Judicial Committee of Her Majesty's Imperial Privy Council on the Special Case respecting the Westerly Boundary of Ontario (printed by order of the Legislative Assembly, Toronto, 1889, p. 267).