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Bay of Fundy,

But there was also another and peremptory reason why the American negotiators must have insisted that the River St. Croix should continue to be designated as having its mouth in the Bay of Fundy.

The repeated attempts, on the part of the crown, to encroach in that quarter on the chartered boundaries of the Province of Massachusetts' Bay, have already been mentioned. The Government of Nova Scotia, pursuing the same course, had in the year 1765 made a large grant of land to Francis Bernard, and others, west of the Schoodic River, (x) which has ultimately been decided to be the true St. Croix. That Government had, also, in the year 1767, granted to William Owing, and others, the island now known by the name of Campo Bello ; (y) and it laid a claim to that of Grand Menan. Both those islands are situated south of a lire drawn due east from the mouth of the Schoodic. That of Grand Menan, according to Mitchell's Map, lies chiefly west of the line designated in the Commissions of the Governors of Nova Scotia, as a line “ drawn from Cape Sable across the entrance of the Bay of Fundy, to the mouth of the River St. Croix,” or Schoodiac. Both have finally been adjudged to Great Britain, as being in 1783, or having theretofore been, within the limits of Nova Scotia. (2)

A conclusive proof of the general prevailing uncertainty as to what river was the true St. Croix, will be found in the topographical description of the Middle British American Colonies, published in 1776, by T. Pownall, M. P. for several years Governor of His Majesty's Province of Massachusetts’ Bay, and which has been quoted with a high encomium in the British Statement. His words are:

“ The River Passam-Aquâda, or Possam-Accâda, which runs into a bay so called, is the supposed eastern boundary of New England; to the east of this begins Aquâda or Nova Scotia; an incertain River St. Croix is the nominal boundary. But as the French, according to their mode of taking possession, always fixed a cross in every river they came to, almost every river on this coast of Sagadahoc has in its turn been deemed by them La Riviere de St. Croix. Under equivocation of this general appellative, they have amused our negotiators on every occasion.” (a)

It will be recollected that by "Sagadahoc” is meant the ancient grant to the Duke of York, or that tract of land described in the Charter of Massachusetts, as lying between Nova Scotia and the (old) Province of Maine; that it is thus laid down in Mitchell's Map; and that as the “Coast of Sagadahoc" extends accordingly from the Bay of Passamaquoddy to that of Sagadahoc, (or Kennebec,) it was according to Pownall uncertain which of the rivers between those limits was the true St. Croix.

Whether the fact alleged there, with respect to the French, was correct or not, is immaterial; nothing can shew more forcibly how general was the opinion of the uncertainty arising from that cause, than to find it entertained by a late Governor of the Province of Massachusetts’ Bay, one of the men of the time best acquainted with American affairs, and asserted by him thirteen years after the cession by France of all her possessions in North America, when there was no longer any motive for misrepresentation, or cause for prejudice.

In the same manner, Mr. Jay, one of the negotiators of the Treaty of 1783, in his deposition laid before the Commissioners appointed pursuant to the 5th Article of the Treaty of 1794, expresses himself as follows: “In settling the boundary line (described in the Treaty,) and of which the River St. Croix forms a part, it became a question, which of the rivers in those parts was the true River St. Croix; it being said that several of them had that name. They did finally agree that the River

(2) Written Evidence, No. 34.
(y) Called “Outer Passamaquoddy Island,” in the Grant. Written Evidence, No. 34.

(z) Written Evidence, No. 2.
(a) Written Evidence, No. 40.

St. Croix, laid down on Mitchell's Map, was the River St. Croix which ought to Bay of Fuudý. form a part of said boundary line." (b)

So strongly impressed was that belief, that it is found again asserted, twenty years later, in the argument addressed in 1797 by the British Agent to the said Commissioners, (who were appointed only to decide which river was the true St. Croix,) when the Agent was arguing that the Schoodic and not the Magaguadavic, (Mitchell's St. Croix,) was the river intended by the Treaty of 1783.

After adverting to an Act of Parliament of the year 1774, (15 Geo. III. ch. 10,) for restraining the trade of Massachusetts' Bay, and other colonies, in which it is enacted, “ that the river which emptieth itself in Passamacadie or Passamaquody Bay, on the western side, and is commonly called and known by the name of St. Croix River, be held and deemed, for all the purposes in this act contained, to be the boundary line between the Provinces of Massachusetts' Bay and Nova Scotia;” and after asserting that the river thus designated, was that contemplated by the Treaty of 1783, and which ought accordingly to be declared the true River St. Croix, the British Agent proceeds as follows:

“ If this principle were once departed from, there would be no check to contention on the subject, though it would be fortunate to His Majesty's interests if he were not thus bound; as it might be clearly shewn in that case, that the River Penobscot, once indiscriminately with the other rivers upon this coast called the St. Croix, was the true boundary by which Nova Scotia or Acadia was ceded to His Majesty by the Treaty of Utrecht, and ought in such case, by the principles of the Laws of Nations, to be established as the eastern boundary of the United States."

And he again says, in answer to the Agent of the United States, who contended. that the Magaguadavic was the true St. Croix:

“The argument of the Agent of the United States' would certainly apply with much greater force in proving the Penobscot to be the river agreed to; as this river, besides being once known indiscriminately with the other rivers by the name of St. Croix, has been the reputed boundary of Nova Scotia, and was contended for as such by the British Commissaries at Paris, in the year 1750, in their memorials concerning the limits of Acadia or Nova Scotia." (c)

It will be readily perceived, that since the River St. Croix had, by the Treaty of 1783, been declared to be the boundary, the Penobscot could not,, in the year 1797, have been claimed as such on any other ground than as being itself the true St. Croix. The British Agent asserts that it ought, and would under the Treaty, have been considered as such, had not a previous act of Parliament declared the St. Croix to be a river which emptied itself into Passamaquoddy Bay. But that act would have given AO security against an attempt on the part of Great Britain to claim the Penobscot as the true St. Croix and the boundary intended by the treaty; since the River St Croix, that empties itself into the Bay of Passamaquoddy, is, by the act of Parliament, to be held and deemed the boundary between the Provinces of Massachusetts' Bay and Nova Scotia, only for the purposes contained in the act; and since, therefore, that temporary enactment, made for the special purpose of embracing within the provisions of the restraining act all the population west of Passamaquoddy Bay, had expired with the aet itself. (d)

(6) Written Evidence, Nos. 23 and 36.

(c) Written Evidence, No. 35. (d) The reason why the British Agent adverted to the Act of Parliament which was inapplicable, and not to the Treaty, is obvious. He was attempting to shew that the westernmost of the two rivers that empty themselves into Passamaquoddy Bay, was the true St. Croix. The act of Parliament had made a provision to that effect; and the Treaty had only generally declared the mouth of the River St. Croix to be in the Bay of Fundy.

Bay of Fundy.

It was that provision in the treaty itself, declaring the mouth of the River St. Croix to be in the Bay of Fundy, which afforded the security required in that respect.

Under the prevailing belief, that the designation of a River St. Croix, by that name only, was not sufficient to determine which river was the true St. Croix, and with the knowledge of the anxious desire evinced by Great Britain to extend, under color of that uncertainty, the boundaries of Nova Scotia to the Penobscot, the insertion of that provision in the treaty was of paramount importance to the United States.

By declaring the mouth of the River St. Croix to be in the Bay of Fundy, the only question which might remain susceptible of doubt, was, which of the two rivers that empty themselves into Passamaquoddy Bay was entitled to the designation of River St. Croix? The Western extremity of the last mentioned bay, or at farthest of Grand Menan Island, forms also the Western extremity of the Bay of Fundy, as will be seen by Mitchell's Map, by the Map A, and by reference to what is described as the entrance of the Bay of Fundy, in Sir William Alexander's Grant. Not only was every pretence to claim the Penobscot, as the true St. Croix, removed by that provision, but no river whatever could be claimed as such, that lay West of Passamaquoddy Bay; since, as will appear by Mitchell's Map, Machias River, which is the next in that direction, lies West of the Western extremity of Grand Menan Island.

It may, perhaps, be asked why, with Mitchell's Map before them, where the mouth of the River St. Croix is laid down, as it really is, in Passamaquoddy Bay, which is there designated by its distinct name, that river was not, in the treaty, declared to have its mouth in that bay, instead of the Bay of Fundy?

Such specific designation of the Passamaquoddy Bay was unnecessary; since it would not have rendered the description more precise, with respect to the object in view. Every river West of the Island of Grand Menan was equally excluded, whether the mouth of the River St. Croix was declared to be in the Bay of Fundy, or in that of Passamaquoddy; and either designation would have left it equally doubtful, which of the two rivers was the true St. Croix. The negotiators being unacquainted with the Indian names of the rivers in that quarter, could not have used expressions more precise than those of the designation which they adopted, and which had prevailed from the date of Sir William Alexander's Grant to that of the treaty.

But this leads to another observation. With Mitchell's Map before them, and a full knowledge that the River St. Croix had its mouth in the Bay of Passamaquoddy, the negotiators of the treaty of 1783 declared it to be in the Bay of Fundy. The Commissioners appointed pursuant to the 5th article of the treaty of 1794, to decide which, according to the treaty of 1783 was the true River St. Croix, did not hesitate, notwithstanding the treaty designation of the Bay of Fundy, to declare in their decision, (e) that “the mouth of the said river (St. Croix) is in Passamaquoddy Bay, at a point of land,” &c. That bay is clearly a part of that of Fundy, and has been acknowledged to be such in a subsequent instrument. (f) The designation in the treaty and the decision of the Commissioners afford an additional proof, that the general term is always understood to embrace its subordinate parts, unless such part be specially excepted.

It will not now be denied that there were urgent reasons, abundant cause, for designating in a special manner, with as much precision as could be obtained from the materials in hand, the place where the mouth of the intended River St. Croix was to be found. Notwithstanding the precautions taken in that respect, the river contemplated by the negotiators, that which in Mitchell's Map bears the name of St. Croix, has not been confirmed as the boundary between the two countries. The Schoodiac, the

(e) Written Evidence, No. 2.
(f) The Treaty of Ghent, Art. 4.

most Westerly river that empties into Bay Fundy, has been decided to be the true St. Bay of Fundy. Croix. But from what has been stated, and indeed, judging from the arguments adduced in support of the claim now advanced by Great Britain, it may be fairly presumed, that the field of English pretensions would have been extended far beyond the Schoodiac, had it not been limited to rivers having their mouth in the Bay of Fundy.

Can it be now pretended that this precaution, the special designation made for a particular and obvious object, necessary in order to obtain the object to which it applied, . was intended and can be made to extend to another object, and to have an effect on the construction of another and distinct provision of the treaty? Can it be contended that, because it was necessary to specify in what part of the Atlantic Ocean the River St. Croix emptied itself, it follows, that when speaking, in another clause of the treaty, of that Ocean, not in reference to that part, but as contradistinguished exclusively from the River St. Lawrence, it must be so understood, as to exclude that part of it, (the Bay of Fundy,) which, for that particular, and for no other reason, it had been requisite so to specify? It is obvious, that it is only in case there had been no necessity to use the designation of “ Bay of Fundy” where it is used, that there would have been any color for the pretended inference, that that designation was made for all the purposes of the treaty, or was intended to control the construction of any other of its provisions.

& 4.

OBJECTIONS TO THE RIVER ST. JOHN, DERIVED FROM OTHER SOURCES THAN THE

TERMS OF THE TREATY.

1784

Having shewn how destitute of any foundation is the inference attempted to be Negotiations of drawn from certain expressions in the treaty, we will now proceed to examine the reasons derived from other sources, which have been alleged, in order to sustain the assertion, that the River St. John, which falls into the Bay of Funty, was not intended, by the framers of the treaty, to be included in the class of rivers therein described as falling into the Atlantic Ocean.

It has already been stated (g) that Congress, in their first instructions, of August 14th 1779, had declared the United States to be 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's River, from its source to its mouth in the Bay of Fundy. (h)

If the Eastern 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."

Although those instructions had been declared, by those of 15th June, 1781, to be no longer peremptory, (i) the boundaries were defined, in the above mentioned terms, in the first propositions of the Commissioners of the United States, which were provi

(g) Written Evidence, No. 8, page 251. (h) The mouth of the River St. John is there described to be in the Bay of Fundy, for the sake of precision; there being several of that name, amongst others, one which has already been mentioned, and forms one of the boundaries of the Province of Quebec, according to the Proclamation of 1763.

(1) Written Evidence, No. 8, page 252.

Negotiations of sionally agreed to, on the 8th of October, 1782, by the British Commissioner, substi

tuting however to the description of the Eastern boundary, the other alternative suggested by Congress, namely, that the true line between Nova Scotia and the United States should be settled by Commissioners, as soon as conveniently might be after the war.

After some discussions, during which the British contended that Nova Scotia should extend to the river Kennebec or to the Penobscot, and one of the American Ministers, after again proposing the River St. John, agreed with his colleagues to adhere to the Charter of Massachusetts Bay, the boundary, as it is described in the treaty, was ultimately agreed to, instead of leaving it to be thereafter settled by Commissioners.

The following particulars are declared, in the British Statement, to be collected from those various instructions, propositions and transactions:

1st. That the mouth of the St. John River was, from the first, specifically described as being in the Bay of Fundy, while the Bay of Fundy was described as distinct from the Atlantic Ocean.

2dly. That the north-west angle of Nova Scotia was deliberately placed by the Americans themselves at the source of the River St. John; which source and north-west angle were by them taken as identical.

3dly. That the highlands intended to divide the rivers falling into the Atlantic Ocean from those falling into the St. Lawrence, are in the American projet) described in the very same terms which they now retain in the definite treaty of 1783.

Whence it is inferred, “that the highlands designated in the projet, being then intended to divide the Androscoggin, Kennebee, and Penobscot Rivers alone, from those falling into the St. Lawrence, to the exclusion of the St. John, the highlands so described are still intended to divide the same rivers; and that from those rivers, therefore, the St. John is still intended to be excepted."

The highlands contemplated by the first American projet were of the same character, but differed in extent, from those designated by the treaty of 1783. And the facts quoted in the British Statement prove the very reverse of the inference attempted to be drawn from them.

The highlands contemplated in the projet and those described by the treaty had one common character, that of dividing the rivers which empty themselves into the River St. Lawrence from those that fall into the Atlantic Ocean. That property, being common to both, is in both instruments expressed in the same terms. But as they differed greatly in extent, the north-west angle of Nova Scotia, as determined by the treaty, being, according to either the British or the American claim, at least eighty miles east of that contemplated by the projet, the terms are no longer the same, in that respect, in the two instruments. The place of beginning, or north-west angle of Nova Scotia, is distinctly stated, in the projet, to be at the source of the River St. John, and in the treaty, to be at the intersection of the highlands with the line drawn due north from the source of the River St. Croix. Supposing therefore that the highlands described in the projet divided the St. Lawrence from the Atlantic rivers, to the exclusion of the St. John; and since that portion of the highlands, which extends from the above mentioned source of the River St. John to the termination of the aforesaid due north line, di-. vides through nearly the whole of that extent the tributary streams of the St. John from those of the St. Lawrence; (k) it cannot be seriously asserted that the highlandsof the treaty are, in that respect,. either deseribed in the very same terms, or are the same, and are intended to divide the same rivers as those contemplated in the projet.

But the terms of the projet, on which the British rely, actually prove that the River St. John, instead of being excluded, was there included amongst the rivers falling in

fk) Or according to the British, from those of the Penobscot.

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