« AnteriorContinuar »
in the Charter of the Province of Massachusetts’ Bay, were described in the follow. Buy of Fundy. ing words, viz:
“ All that said part of New-England, in America, which lies and extends between a great river commonly called Monomac, alias Merimack River, and a certain other river, there called Charles River, being in the bottom of a certain bay, there commonly called Massachusetts, alias Mattachusetts, alias Massatusetts Bay; and also all and singular those lands and hereditaments whatsoever, lying within the space of three English miles, on the South part of the said river called Charles River, or of any or every part thereof; and also, all and singular the lands and hereditaments whatsoever, lying and being within the space of three English miles to the Southward of the Southernmost part of the said bay called Massachusetts, alias Mattachusetts, alias Massatusetts Bay; and also, all those lands and hereditaments whatsoever, which lie and be within the space of three English miles to the Northward of the said river called Monomack, alias Merimack, or to the Northward of any and every part thereof, and all lands and hereditaments whatsoever, lying within the limits aforesaid, North and South in latitude and breadth, and in length and longitude, of and within all the breadth aforesaid throughout the main lands there, from the Atlantic or Western Sea and Ocean on the East part, to the South Sea on the West part." (0)
The Eastern front of more than one half of the Grant extended, from North to South, along that certain bay, commonly called Massachusetts' Bay. Nevertheless the depth, or length and longitude of the Grant, is described as being of and within all the breadth aforesaid throughout the main lands there; from the Atlantic or Western Sea and Ocean on the East part, to the South Sea on the West part.”
The term “ Atlantic Ocean," which had not been used in the description of the. Eastern boundary along the sea coast, is afterwards used, as embracing the Bay of Massachusetts, though this had in another sentence been designated by its specific name. For if that bay was not, in the last sentence, included in that generic term, there would have been, to that part of the Grant which fronts on the bay, no Western boundary assigned: the length or longitude being described as extending to the South Sea on the West, from the Atlantic Ocean, without naming Massachusett's Bay on the East
2. It has been stated, in the British Statement, that, in the Grant of Nova Scotia, by James I. to Sir William Alexander, the Bay of Fundy and the Gulf of St. Lawrence, are specifically described, and distinguished, the former from the adjacent parts of the Sea, and the latter, as well from the Sea as from the River St. Lawrence.”
The Bay of Fundy is certainly, in that Grant, distinctly described, not indeed by that name, which it had not yet received, but as the Great Eastern Inlet, which runs between the countries of the Souriquois and Etchemins. It is mentioned with great propriety, in order to designate with precision the position of St. Mary's Bay and of the River St. Croix, both hardly then known by those names, and the situation of which is thus determined, as lying respectively on the South and North side of the entrance of the Bay of Fundy.
The Gulf of St. Lawrence is also specifically described, as the boundary of the Grant, from Gaspé to Cap-Breton. But neither the words “sea,” nor “Atlantic Ocean" are used, in describing the boundary from Cap-Breton to Cape Sable: And the word “Sea" is afterwards used, as expressly embracing both the Bay and Gulf aforesaid; as will clearly appear by the following clause of the Grant, viz:
“ Including and comprehending, within the aforesaid shores of the Sea and their circumferences, from Sea to Sea, all continents, with the rivers, torrents, bays, shores, islands, or seas, lying near or within six leagues of any part of the same, from the
(0) Written Evidenoe, No. 13.
Ray of Fundy. Western, Northern or Eastern parts of the same shores or precincts; and from the
South-east, where lieth Cape Breton, and from the Southward part thereof, (where Cape Sable is,) all seas and islands towards the South within forty leagues of the said shores thereof." (P)
The word “Sca” is there, as well as wherever else it occurs in the Grant, used in its general sense, and embraces both the Bay of Fundy and the Gulf of St. Lawrence. The Grant of Islands and Seas, whether for six leagues, from the West, North and South, or for forty from the South, is expressed in the same words (maribus, omnia maria.) The seas thus granted and described, as extending from the North and East, eould be no other than the River (9) and Gulf of St. Lawrence. The seas extending from the South are the main Atlantic Ocean. The emphatic words " from sea to sea" (à mari ad mare) most clearly mean and can mean nothing but, “from the main Atlantic and Bay of Fundy to the River and Gulf of St. Lawrence.”
Thus we have a direct instance, where, the Bay of Fundy and the Gulf of St. Lawrence being, in one clause of the Instrument, specifically described and distinguished by their respective names, the general term “ Seas” is nevertheless used and understood, in other clauses of the same Instrument, as embracing the said Bay and Gulf.
The term “ Seas” is uniformly used, in the Grant, instead of that of Atlantic Ocean It will not be denied that they are, as to its object, perfectly synonymous: and we find another proof of this, as well as of the general meaning of the words used in the Grant, in a publication of the year 1624, by the Grantee himself, Sir Wm. Alexander; where, speaking of the limits of his Patent, he says, “ leaving the limits to be appointed by his Majesty's pleasure, which are expressed in the patent, granted unto me under his great seal of his Kingdom of Scotland, (marching upon the West towards the river of St. Croix, now Tweed, where the Frenchmen did design their first habitation) with New England; and on all other parts, it is compassed by the Ocean, and the Great River of Canada." ()
The Grantee seems to entertain some doubts, as to the certainty of the limits between New England and his Grant; which probably arose from the manner in which the Northwardly line, from the River St. Croix to the River St. Lawrence, is described in it. But he says expressly, that, on all other parts, it is compassed by the River St. Lawrence and by the Ocean; which last term thereforc clearly embraces the Bay of Fundy and the Gulf of St. Lawrence.
3. In all the Commissions of the Governors of Nova Scotia, from the year 1765, to the year 1782, (s) this Province is described, as being “bounded on the Westward by a line drawn from Cape Sable, across the entrance of the Bay of Fundy, to the mouth of the River St. Croix; by the said river to its source, and by a line drawn due North from thence to the Southern boundary of our Colony of Quebec; to the Northward by the said boundary as far as the Westerni extremity of the Bay des Chaleurs ; to the Eastward by the said Bay and the Gulph of St. Lawrence, to the Cape or Promontory called Cape Breton in the Island of that name;
and to the Southward by the Atlantic Ocean, from the said Cape to Cape Sable aforesaid, includ
(p) “Includens et comprehendens intra prædictas maris oras litorales ac earum circumferentias a mari ad mare, omnes terras continentes cum fluminibus, torrentibus, sinibus, littoribus, insulis, aut maribus jacentibus propè aut infra, sex leucas ad aliquam earumdem partem, ex Occidentali, boreali vel orientali partibus orarum littoralium et præcinctuum earumdem, et ab Euronoto ubi jacet Cap-Breton, et ex australi parte ejusdem (ubi est Cap de Sable) omnia maria ac insulas versus meridiem intra quadraginta leucas dictarum orarum littoralium earumdem."
(9) The shores of the River St. Lawrence are, in the Grant, called Sea Shores “per maris oras littorales ejusdem fluvii de Canada.”
(r) See Egbert Benson's Report to President-Written Evidence, No. 36.
ing the Island of that name, and all other Islands within forty leagues of the Coast,” Bay of Pundt. &c.
The Southern boundary of the Colony of Quebec, there referred to as being the Northern boundary of Nova Scotia, is, in the commissions of the Governors of that Province issued during the same period, described in the same words as in the Proclamation of 1763, or the Quebec Act of 1774; that is to say, either, as passing " along the Highlands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the Sea, and also along the North Coast of the Bay des Chaleurs;" or, as being “a line from the Bay of Chaleurs, along the Highlands which divide the rivers that empty themselves into the River St. Lawrence from those which fall into the Sea, to a point in 45 degrees of Northern latitude, on the Eastern bank of the River Connecticut.” (t)
In defining the boundaries of Nova Scotia, the Bay of Fundy, the Gulf of St. Lawrence, and the Atlantic Ocean are each specially designated and distinguished from each other; the appellation of Atlantic Ocean being expressly confined to the Main Ocean, exclusive of that Bay and Gulf, and to that portion of it only, which extends from Cape Breton to Cape Sable.
Now, whatever point of the line drawn due North from the source of the River St. Croix may be considered as the North-west Angle of Nova Scotia; or, in other words, whatever point on that line may be considered as the point of intersection with the Southern boundary of the Colony of Quebec, as described in the commissions of the Governors of that Colony; whether that point of intersection, or North-west angle of Nova Scotia, be Mars' Hill, or any other point north of it; it is impossible to draw any line whatever, from that point of intersection or North-west angle of Nova Scotia, to the Western extremity of the Bay des Chaleurs, which will or can divide from each other, cross, or touch any other river or rivers whatever, but such as fall, either into the River St. Lawrence, the Gulf of St. Lawrence, or the Bay of Fundy.
No river whatever falls into that portion of the Atlantic Ocean which extends from Cape Breton to Cape Sable, but such as have their sources within the Peninsula or present Province of Nova Scotia, South of the Bay of Fundy, of the Gulf of St. Lawrence, and of the Isthmus, which separates those two inlets. It is impossible that any such river should be, either divided from other waters, intersected or touched by any line, that can be drawn from any point, north of the source of the River St. Croix, to the Western end of the Bay des Chaleurs.
The rivers therefore which, according to the designation of the Southern boundary of the Colony of Quebec, or Northern boundary of Nova Scotia, are to be divided, by that boundary, from the rivers emptying into the River St. Lawrence, and are there described, as rivers falling into the sea, (a term used in the Proclamation of 1763 as synonymous with Atlantic Ocean,) must of necessity be those, and those alone, which fall either into the Bay of Fundy, or into the Gulf of St. Lawrence.
Thus, although the term “ Atlantic Ocean” is, in one part of the description of the Boundary, used in a limited sense, and exclusive of the Bay of Fundy and of the Gulf of St. Lawrence; its synonymous term “Sea," in another part of the description, and in reference to the division of the rivers which are intended to be divided by the treaty, embraces and embraces nothing but that Bay and Gulf.
4. After the treaty of 1783, the Northern part of Nova Scotia was erected into a New Province, by the name of New Brunswick; and the Bay of Fundy, together with the Isthmus which separates it from the inlet of the Gulf of St. Lawrence called “ Bay Verte,” were made the Southern Boundary of the New Province. In the subsequent commissions of its Governors, the Southern Boundary of the Province of
(1) Written Evidence, No. 21.
Pay. of Funiy. Quebec, (or Lower Canada,) continues to be declared the Northern Boundary of that
of New Brunswick. But the words “ Atlantic Ocean,” for the sake, it is presumed,
5. Another instance will be found in the commission of 16th March, 1772, of the Governor of Newfoundland, as quoted in that of Guy Carleton, Governor of the Province of Quebec, dated 27th December, 1774. The Islands of Madelaine are there described as lying in the Gulf of St. Lawrence; and the Labrador River St. John, which has its mouth in that Gulf, as falling into the Sea. Thus, notwithstanding the designation of the Gulf by its specific name, in one clause of the commission, the word “Sea,” is used in another clause, not only as embracing the Gulf, but instead of its specific designation. (v)
It is believed that after what precedes, and having examined the authorities referred to, it will no longer be asserted, that the terms “Sea” and “ Atlantic Ocean,” do not comprehend, and have not been used, as embracing their subordinate inlets, bays, or gulfs; particularly the Bay of Fundy, and the Gulf of St. Lawrence, and in reference to rivers described as falling into the Sea, or Atlantic Ocean.
But the principal object, was to shew, and it has also been conclusively proved, that different meanings may, without inconsistency, be given, and have in those British public acts, been assigned to the same term, in different clauses of the same instrument. And it will not escape notice, that the proofs are drawn exclusively from documents connected with the contested Boundary, that the description in the treaty of: 1783 of that Boundary was borrowed from the commissions which have been quoted, and that most of the quotations refer expressly to the Bay and Gull, which are the subject mat: ter of this discussion.
Since, therefore, the use, in one part of the treaty, of the terms “ Bay of Fundy"and “ Atlantic Ocean," as distinct the one from the other, cannot, in any degree, restrain or affect the natural sense of the term “ Atlantic Ocean," in another clause of the treaty, where it is used as distinct and separate from the River St. Lawrence alone; it would not seem necessary to inquire into the reason, why the Bay of Fundy was specially designated and distinguished, in the last clauses of the second article of the treaty.
Yet, if it can be shewn, that there was a natural reason, or a special motive for making that distinction in those clauses, and that such reason and motive were applicable to those clauses alone, there will not remain even a pretence for asserting, that the dis, tinction, thus made in a part of the treaty for a particular purpose, can be construed to cxtend to another clause, to which the distinction and the reasons for it were wholly inapplicable.
The United States are declared by the treaty, to be bounded - South by a line to be drawn
along the middle of St. Mary's River to the Atlantic Ocean. East by a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy to its source; prehending all islands within twenty leagues of any part of the shores of the United States, and lying between lines to be drawn due East from the points where the aforesaid Boundaries between Nova Scotia, on the one part, and East Florida, on the other, shall respectively touch the Bay of Fundy and the Atlantic Ocean.”
(u) Written Evidence, Nos. 37 and 38.
And it is urged, that the last designation of the Bay of Fundy must have been for Bay of Funds. some other purpose, than in reference to the Eastern Boundary of the United States; since, had there not been another object in view, it was unnecessary to mention that Bay; and the lines might have been described as correctly, by using the words, 6 due East from the points, where the aforesaid Boundaries between Nova Scotia, on the one part, and East Florida on the other, shall respectively touch the Atlantic Ocean."
The Eastern extremity of the Southern Boundary of the United States was, in the first instance, designated to be the point where the St. Mary's River touched, or hac its mouth, in the Atlantic Ocean. And the Southern extremity of their Eastern Boundary was likewise designated to be the point where the River St. Croix had its mouth in, or touched, the Bay of Fundy.
All the Islands, between lines to be drawn due East from those two points, were afterwards declared to be comprehended within the United States. In designating, therefore, in the last sentence, those two points, precision of language required, that they should be described in the same terms as in the preceding sentence, where they had been designated, as respectively touching the Bay of Fundy and the Atlantic Ocear. It would have been a most incorrect and inapposite use of language, after those points had thus been designated, to have immediately after described them as the points where the aforesaid Boundaries shall respectively touch the Atlantic Ocean.
The apparent distinction, therefore, made in the last sentence, between the Bay of Fundy and the Atlantic Ocean, is only in reference to those two points, and arises from the manner in which they had been respectively designated in the preceding sentence. It is solely because the River St. Croix is, in the first instance, described as having its mouth in the Bay of. Fundy, that it became again necessary and proper to designate, in the last instance, the point from which the East line was to be drawn, (namely the mouth of the River St. Croix,) as touching that Bay. Why the River St. Croix was thus described, can alone require an explanation: and it will now be shewn, that there was for this a natural, and on the part of the American Negotiators, an important reason.
It has already been seen, that the River St. Croix was designated in the same manner in the original grant of Nova Scotia to Sir William Alexander, for the necessary purpose of describing, with precision, the position of a river, then hardly known in England, and on which the name of St. Croix had been imposed, if imposed at all, but a few years before by the French. The same designation was evidently borrowed from that grant, in the description of the Boundaries inserted in the commissions of the British Governors of that Province. After the negotiators of the treaty of. 1783 had finally agreed to confirm the River St. Croix, as the Boundary between the dominions of the two Powers, it was natural that they should, and it would indeed have been an extraordinary courses, if they had nat adopted the same terms, in describing the situation of the river, which had been so long in use in the public British documents, and which had been preserved uninterruptedly to the very date of the treaty. (w)
This mention of the fact that the River St. Croix had its mouth in that inlet of the Atlantic Ocean known by the name of Bay of- Fundy, can have no more effect on other clauses of the treaty than in Alexander's Grant, or the Governors' Commissions. And it has already been shewn, with respect to both, that notwithstanding that specific mention by name of “Bay of Fundy” and of “Gulf of St. Lawrence” in the description of the boundary, both that bay and gulf were embraced by the generic term used in another clause.
(w) See Written Evidence, No. 15. In the Commission to Governor Parr, dated 29th July, 1782, the words are, “bounded on the westward by a line drawn from Cape Sable across the entrance of the Bay of Fundy, to the mouth of the River St. Croix, by the said river to its source," &c.