Avoiding accordingly the words, "mountains," "hills," or any such as might have been derived from, or indicative of, the peculiar nature of the ground, the general expression "Highlands" was adopted, as applicable to any ground, (whatever might be its nature or elevation,) along which the line dividing the rivers should be found to pass: the fact, that the ground dividing rivers is necessarily more elevated than those rivers and the country adjacent to their banks, being sufficient to entitle it to the designation of "Highland," in relation to those rivers and to that country. (f) No Highlands can divide the rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence, but those Highlands in which the rivers thus designated, or their tributary streams, have their respective sources, and thence flow in different directions, to the Ocean and to the St. Lawrence, respectively. The map A. shews that there are, along the line drawn due north from the source of the River St. Croix, but two places which divide rivers thus flowing in different directions, and in which those rivers have their respective sources. The due north line from the source of the River St. Croix, crosses no other rivers, for a distance exceeding ninety miles, but tributary streams of the River St. John, and that river itself. There is not along the line, through the whole of that distance, a single point that divides rivers falling into the Atlantic Ocean from those falling into the River St. Lawrence, or that divides any other water-courses whatever, but such as fall into one and the same river, viz: the River St. John. At about ninety-seven miles from the source of the River St. Croix, the due north line reaches a ridge or Highland which divides tributary streams of the River St. John, which falls into the Bay of Fundy, from the waters of the River Ristigouche, which falls, through the Bay des Chaleurs, into the Gulf of St. Lawrence. And, in its further north course, the said line, after crossing several upper branches of the River Ristigouche, reaches, at the distance of about 144 miles from the source of the River St. Croix, the Highlands which divide the waters of the said Rive Ristigouche from the tributary streams of the River Metis, which falls into the River St. Lawrence. It is clear that there is no other possible choice but between those two places, and that the north-west angle of Nova Scotia must, of necessity, be found at the intersection of the said due north line with, either the Highland which divides the waters of the River St. John from those of the River Ristigouche, or the Highlands which divide the waters of the River Ristigouche from those of the River Metis; since there is no other point, through the whole course of the due north line, which divides any other waters but such as empty themselves into the same river. (g) The selection between those two dividing Highlands evidently depends on what is meant, according to the treaty of 1783, by rivers that empty themselves or fall into the River St. Lawrence, and by rivers which fall into the Atlantic Ocean. The treaty recognizes but two classes of rivers. The first class embraces only the rivers falling into a river, designated by its specific name, and cannot be construed to include any rivers that do not empty themselves into the river thus specially designated. It must be inferred that all the rivers met by the due north line, which do not actually empty themselves into the river St. Lawrence, according to its known limits, are, by the treaty, considered as falling into the Atlantic Ocean. It is not intended by these observations, either to admit that the ground along which the line contended for by the British passes, is, in the sense they attach to the word, entitled to the appellation of "Highlands,” or that there were not reasons derived from usage and general understanding for adopting that term. The word "Highlands" is here considered only in its general sense, and as it stands in the treaty. See hereafter the observations on the Proclamation of 1763. (g) Into the River St. John, as far north as the first Highland which divides the waters of that river from those of the Ristigouche; into the River Ristigouche, between that first Highland and those which divide the waters of that river from those of the River Metis. This conclusion is in perfect accordance with what is understood by "Atlantic Ocean" in the usual and general acceptation of the term. "Sea," in its general sense, embraces the whole body of salt waters on the globe; its great subdivisions are designated by the names of Atlantic Ocean, Pacific, Indian, Arctic, Antarctic Ocean, &c. and each of these is a generic appellation, embracing, when not specially or impliedly excluded, all the bays, gulfs, and inlets which are only portions of such ocean, being formed by the indentures of the shores to which it does extend, or by adjacent islands. The Northern Atlantic Ocean extends from the European shores to those of North America. In its general sense, it embraces all the bays, gulfs, and inlets, though distinguished by distinct names, which are formed by the shores of Europe and North America. This is too generally admitted in geography to be denied; and a single quotation from a popular work, will be adduced by way of illustration. "Scotland is bounded on the south by England, and on the north, east, and west, by the Deucaledonian, German, and Irish Seas; or, more properly, the Atlantic Ocean."(h) The Atlantic Ocean is here explicitly declared to embrace the Irish Channel and the German Sea, although there is no portion of the said Ocean more usually designated by its distinct appellation than the German or North Sea. In the case under consideration, not only is the generic appellation of "Atlantic Ocean" used as distinguished from, and contrasted with, the River St Lawrence alone, but every river not emptying itself into the said river, which was, or could possibly have been contemplated by the framers of the treaty of 1783, as falling into the Atlantic Ocean, falls into it through some intermediate gulf or bay, known, and, in Mitchell's map, designated by a specific and distinct name: that is to say; the river Ristigouche, through the Bay des Chaleurs, and the Gulf of St. Lawrence; the river St. John, through the Bay of Fundy; the rivers Magaguadavic, (Mitchell's St. Croix) and Scoodiac, (Mitchell's Passamacadic) through the Bay of Passamaquoddy and the Bay of Fundy; the Penobscot through the Bay of the same name; the Kennebec through the Sagadahock Bay; and the Connecticut River through Long Island Sound, which last inlet is as much a close and distinct sea, or portion of the Atlantic Ocean, as the Gulf of St. Lawrence, and more so than the Bay of Fundy. So that if the rivers which fall into the Atlantic through a gulf, bay, or inlet, known by a distinct name, are not, under the treaty of 1783, rivers falling into the Atlantic Ocean, there is not a single river that could have been contemplated by the treaty as such, to which the description applies. The River Ristigouche is, therefore, as clearly embraced by the words "rivers falling into the Atlantic Ocean," as either the River St. John, the Penobscot, or the Kennebec; and, if excepted, it must be by virtue of some other provision in the treaty. The designation of the Gulf of St. Lawrence, by that special name, in any other portion of the treaty, is not sufficient to narrow the meaning of the words, "rivers falling into the Atlantic Ocean," used as they are, in the description of the Boundary, in their general sense and common acceptation, unless it can be shewn that the special designation was used expressly in order to restrain that general meaning, and not for a special purpose. Whenever it is intended to make a provision applicable only to a particular bay, gulf, or portion of the ocean, or when the object is to designate with precision the situation of the mouth of a river, or of some other place lying on the shore, or when it appears necesssary, in order to remove any doubt whatever, the distinct name of such bay or gulf must necessarily be used. The special appellation being thus used in one sentence, for a special avowed object, is applicable to that object alone, and can (h) Guthrie's Geographical Grammar. Written Evidence, No. 6. not affect the clear and express meaning of another sentence in the treaty. Still less can it be so construed in relation to a clause in which the generic term, "Atlantic Ocean," is used, not only without restriction, but as contradistinguished from the River St. Lawrence alone. The Gulf of St. Lawrence is designated by its specific name in but one sentence of the treaty. It is provided, by the third article, " that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other Banks of Newfoundland; also in the Gulf of St. Lawrence, and at all other places in the Sea, where the inhabitants of both countries used at any time heretofore to fish." So far from this provision having any bearing on the clauses in which the rivers falling into the Atlantic Ocean are mentioned, the only question which arises, is, why the Gulf of St. Lawrence was at all mentioned, since the provision would have apparently been as complete, had that name been omitted, and the clause had simply declared the right to 'ake fish to extend to "all places in the Sea where the inhabitants of both countries used heretofore to fish." The reason was, that the Gulf of St. Lawrence being a close Sea, the shores of which did belong to Great Britain exclusively, (i) a doubt might have arisen whether, notwithstanding the general provision, the people of any other nation could fish there without an express stipulation to that effect. Although the Gulf of St. Lawrence is actually declared in the clause to be a place in the Sea, it was deemed proper to name it expressly, by way of greater caution, and in order to remove every possible doubt on that subject. And the meaning of the clause is, that the people of the United States shall have the right to fish at all places in the Sea, where, &c. without even excepting the Gulf of St. Lawrence, and although this might be considered as under the exclusive jurisdiction of Great Britain. It is for the same reason that it was necessary, in the same article, to stipulate expressly for the right of taking fish on the coasts, bays, and creeks, of all other of His Britannic Majesty's dominions in America, as, otherwise, some of those bays, &c. though, in fact, parts of the Sea where the inhabitants of both countries used, prior to the war, to fish, might have been considered as excepted, by reason of their being within the exclusive jurisdiction of Great Britain. And it is also for a similar reason, on account of the pretensions of Great Britain on the subject of fisheries, that it was even deemed necessary to insert an express provision declaratory of the right of the people of the United States to continue to take fish on the Grand Bank, and the other Banks of Newfoundland; although those Banks could not be denied to be "places in the Sea," and might certainly have been considered as included within that general term. Since the specific designation, in the third article, of the "Gulf of St. Lawrence," for a special purpose, cannot narrow the meaning of the generic term "Atlantic Ocean," when used for a general purpose, and without restriction, the only question is, whether the River Ristigouche can, by any construction, be considered as falling into the River St. Lawrence. The similarity of names, and the character of that river, might render it somewhat difficult to ascertain the precise place where it terminates, and where the Gulf commences, which must be acknowledged to be in a great degree arbitrary. The doubts in that respect are, however, removed by an authority, which, as to that point, appears conclusive. (i) Although the French had, and still have, the right to take, and even to dry, fish on the western coast of Newfoundland, the sovereignty of the Island remains with Great Britain, by virtue of the treaty of Utrecht. Written Evidence, No. 7. By His Britannic Majesty's Proclamation of the 7th of October, 1763, for erecting the Government of Quebec and other purposes, that Government or Province is declared to be bounded, on the Labrador Coast, by the River St. John, (k) and its eastern Boundary from Cape Rosiers is afterwards described in the following words, viz: "And from thence crossing the mouth of the River St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John." (1) All the rivers, the mouths of which lie west of the said Boundary, as delineated in the American transcript of map A, are thereby declared to empty themselves above the mouth of, and into the River St. Lawrence. All the rivers, on the contrary, the mouths of which are east of the said Boundary, or south of Cape Rosiers, (m) including the River Ristigouche, are declared to empty themselves below the mouth of the River St. Lawrence, and fall into the Atlantic Ocean through the Gulf of St. Lawrence. The north-west angle of Nova Scotia, described in the treaty of 1783, is there. fore formed by, and determined to be at the intersection of the line drawn due north from the source of the River St. Croix, (being the point A in the map A, and about 144 miles from the said source,) with the Highlands that divide the tributary streams of the Ristigouche, which falls into the Atlantic Ocean, from the tributary streams of a river emptying itself into the River St. Lawrence, and presumed, according to the map A, to be the River Metis. The said Highlands, from the said north-west angle, extend south-westwardly to the north-westernmost head of Connecticut River, and eastwardly, to Gaspe, dividing the whole way the waters of the Atlantic Ocean from those of the River St. Lawrence. The said north-west angle of Nova Scotia is formed by the intersection of the said due north line, which is the western Boundary of Nova Scotia, with the Highlands which, from the point of intersection, extend eastwardly, and, for some distance. at least, must be the northern Boundary of Nova Scotia, so as to form the said northwest angle according to the treaty. And the Boundary Line between the dominions of the two Powers, as described by the said treaty, (and delineated on the map A,) extends due north from the source of the river St. Croix, about 144 miles to the north-west angle of Nova Scotia, as above described; and thence along the Highlands which divide the rivers that empty themselves into the River St. Lawrence from the tributary streams of the River Ristigouche, of the River St. John, and of the other rivers which fall into the Atlantic Ocean, to the north-westernmost head (whatever this may be) of the Connecticut River: so that the said line does, through its whole extent, (from the said northwest angle of Nova Scotia, to the said north-westernmost head of Connecticut river,) pass between the sources of the said rivers, leaving, on the right hand, and within the dominions of Great Britain, the sources and all the waters of the rivers emptying themselves into the River St. Lawrence; and, on the left hand, and within the dominions of the United States, the sources and all the waters (lying west of the line (4) This River St John, on the Labrador Coast, must not be confounded with the Great River St. John which falls, through the Bay of Fundy, into the Atlantic Ocean. (1) All the maps adduced in evidence agree with this designation of the River St. Lawrence. See, amongst others, Topographical Evidence, Printed Maps, No. 50. (m) According to James the First's Grant of Nova Scotia to Sir W. Alexander, in 1621, the River St. Lawrence seems to have been understood to extend as fir South at least, as Gaspe, which lies between Cape Rosiers and Bay des Chaleurs. The words are "et ab eo pergendo versus orientem per maris oras littorales ejusdem fluvii de Canada, ad fluvium, stationem navium, portum aut littus communiter nomine de Gachepe vel Gaspe notum et appellatum." 4 drawn due north from the source of the River St. Croix,) of the Rivers Ristigouche and St. John, as well as of all the other Rivers which fall into the Atlantic Ocean. It is believed that a single glance at the map A, comparing it with the words of the treaty will, instantaneously, lead to the same conclusion. To prove what, from the tenor of the treaty is self-evident, presents no other difficulty than what is inherent to any attempt to demonstrate an axiom or self-evident truth. In such an attempt, the danger is incurred of obscuring what needed no illustration. An apology. for having said so much will probably be found in the positions which the other party is compelled to assume. 22. Ancient Provincial Boundaries as established by former authentic acts. The United States might safely rest their case on what precedes. When the terms of a treaty are clear and explicit; when their meaning is susceptible of but one construction, it is not necessary to resort to any other source of arguments. Still it is permitted to seek for the intentions of the parties in the instrument itself: and as such of the proceedings connected with the negotiations of the treaty of peace as have been preserved, have been adduced as evidence, and will probably be resorted to on the part of Great Britain, it may not be useless, though it may be deemed superfluous, to examine whether there is, as connected with those proceedings, any proof, on the face of the instrument, of the avowed intentions of the parties. The Congress of the United States, on the 14th of August, 1779, agreed to a draft of instructions to the Commissioner to be appointed to negotiate a treaty of peace with Great Britain. As part of those instructions, the Boundaries of the Unit ed States are declared to be as follows, viz: "These States are bounded north by a line to be drawn from the north-west angle of Nova Scotia, along the Highlands which divide those rivers which empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, to the north-westernmost head of Connecticut river; and east, by a line to be drawn along the middle of St. John River, from its source to its mouth in the Bay of Fundy, . . if the castern Boundary above described cannot be obtained, you are hereby empowered to agree, that the same shall be afterwards adjusted by Commissioners, to be duly appointed for that purpose, according to such line as shall be by them settled and agreed on, as the Boundary between that part of the State of Massachusetts Bay, formerly called the Province of Maine, and the Colony of Nova Scotia, agreeably to their respective rights." (n) In a report of a Committee of Congress, presented 16th August, 1782, it is confessed that the eastern part of Massachusetts, "which goes by the name of Sagadahock, cannot be proved to extend to the river St. John as clearly as to that of St. Croix." (0) Congress had, previously, by their final instructions of the 15th of June, 1781, modified those of the 14th of August, 1779, and directed their Ministers" to accede to no treaty of peace which should not secure the independence and Sovereignty of the Thirteen States, or inconsistent with the treaties subsisting between them and (n) Secret Journals of Congress, Vol. 2, page 225. Written Evidence, No. 8. |