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Numerous instances have already been adduced in this Statement, taken from pub- Gulf of St. Law lic acts and other documents, and shewing that, both in its general sense and usual acceptation, the term “ Atlantic Ocean," is always so understood.
Amongst other proofs, we refer more particularly to those drawn from the grant of Nova Scotia to Sir William Alexander, from the commissions of the Governors of Nova Scotia, New Brunswick, the Province of Quebec and Canada, and from the provision respecting captures in the treaty between Great Britain and France of 1783. And we will now, in order to remove any possible doubt on the subject, examine more closely an instance which had only been adverted to, and where the meaning and effect of the expressions used were considered with deliberate attention.
In the first project of a treaty, which was presented by the American Plenipotentiaries, in the course of the negotiation at Ghent, a provision was, as usual, inserted for the limitation of captures subsequent to the signing of the treaty. The clause, which appears to have been borrowed from that which had been agreed to, between Great Britain and France, in 1783, was in the following words, viz: “that the vessels and effects which may be taken in the Channel, and in the North Seas, after the space of from that of the signature hereof, shall be restored on each side; that the term shall be from the Channel and the North Seas to the Canary Islands inclusively, whether in the Ocean or the Mediterranean: of from the said Canary Islands to the equinoctial line or equator, and of in all other parts of the world, without exception.” This provision was at first agreed to by the British Plenipotentiaries, with a verbal amendment as to the Mediterranean, and substituting the words “from the period of the exchange of the ratifications” to that of the signature" of the treaty.
It having been, at the same time, proposed by the British Plenipotentiaries; tħat the ratifications should be exchanged at Washington, it was perceived that the limitation of captures ought to be shorter on the American than on the European coasts.
And accordingly they proposed, at a subsequent conference, the following substitute: (c)
“ That all vessels and effects which may be taken, after the space of twelve days from the period of the exchange of the said ratifications, upon all parts of the coast of North America, from the latitude of 23 degrees north to the latitude of 47 degrees north, and as far eastward in the Atlantic Ocean as the 65th degree of west longitude, from the meridian of Greenwich, shall be restored on each side. - That the term shall be thirty days in all other parts of the Atlantic Ocean, as far eastward as the entrance of the British Channel, and southward as far as the equinoctial line or equator; and the same time for the Gulf of Mexico and all parts of the West Indies.
Forty days for the British Channel and the North Seas; the same time for all parts of the Mediterranean. And one hundred and fifty days for all other parts of the world, without exception.”
The words used in reference to the period of twelve days, viz: "upon all parts of the coasts of North America,” embrace, of course, all the adjacent Bays and Gulfs as far north as the latitude of 47 degrees. But it will be seen, by referring to any map,(d) that that parallel of latitude touches the northern extremities of the Islands of Cape Breton and St. John, leaving, south of it, a very small portion only of the Gulf of St. Lawrence. Almost the whole of that gulf, (including the entrance of the river of the same name, the Straits of Bellisle, and those which lie between Cape Ray, of Newfoundland, and the North Cape of Cape Breton,) lies north of that latitude, and is not, therefore, included within the provision limiting the captures to twelve days.
(c) See projet of Treaty and Protocol of the Conference of 1st Dec. 1814.-Written Evidence, No.46. (d) Sce Map A and printed Maps.
Gulf of St. Law.
The Gulf is not included in the forty days' provision, which applies only to the British Channel, the North Seas and the Mediterranean. And it must, therefore, have been necessarily comprehended in the term of thirty days, which extends to all other parts of the Atlantic Ocean as far east as the British Channel, and south as the Equator; unless it should be supposed to have been included in the term of “150 days for all other parts of the world without exception:” and this supposition is untenablc.
The Gulf of St. Lawrence, particularly the Straits above mentioned and the entrance of the River St. Lawrence, are the highway, and form the only outlets for the whole trade between Great Britain and Quebec; a trade which was, at that time, carried on exclusively in British vessels. To have, therefore, included that gulf within the term of 150 days, would have been tantamount to a permission to the American armed vessels and privateers, coming from ports within fourteen days sail of the entrance of the gulf, to intercept and capture, without any difficulty and with impunity, the whole of that trade, during the space of more than four months. This is too absurd to have been intended by the British Plenipotentiaries: and what proves, beyond doubt, that such was not their intention, is, that the period for allowing captures in the gulf was ultimately made not longer but shorter than thirty days: which was effected, by extending the period of twelve days “ upon all parts of the coast of North America,” as far north as the latitude of 50 degrees. (e)
It must also be observed, that the British Plenipotentiaries, in making that proposal (of the 1st December, 1814), had duly attended to the propriety of specifying, by their distinct names, those outlets or seas respecting which there might be some doubt; and which, from long and common usage, might be considered as not included within the term “ Atlantic Ocean.” Amongst others, “the Gulf of Mexico and all parts of the West Indies” were distinctly specified, as coming within the term of thirty days; and the Gulf of St. Lawrence was not named, it being perfectly well understood, that it was of course included in the term “all other parts of the Atlantic Ocean.”
It cannot, therefore, be doubted, that the rivers which fall into the Gulf of St. Lawrence, are clearly embraced by the term, “Rivers that fall into the Atlantic Ocean;": that the North-west Angle of Nova Scotia and the boundary line, extending thence westwardly, designated in the treaty as being “on and along the Highlands which divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean,” may, in strict conformity with that provision, be equally placed on and along highlands dividing the tributary streams of the River St. Lawrence, either from those of the River Ristigouche, or from those of the River St. John; and that, whether it shall be on the one or on the other, depends on the place where the due north line from the source of the River St. Croix meets the Highlands in which the tributary streams of the River St. Lawrence have their source; since such Highlands alone can divide the rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean.
There is but one circumstance which, though not adverted to in the British Statement, may give rise to an objection, and makes a difference in the arguments, derived from the intentions of the parties, as applied to the Ristigouche and to the St. John.
It is known by the last surveys, as exhibited in the map A, that the due north line does not reach the Highlands, in which the tributary streams of the River St. Lawrence have their source, until after having crossed several branches of the Ristigouche. The termination of that line, or North-west Angle of Nova Scotia has, therefore, in strict conformity with the express terms of the treaty, been found to be on the highlands which divide those branches from the rivers that empty themselves into the River St. Lawrence.
(e) Treaty of Ghent, Art. 2d. Written Evidence; No. 1.
The position of that point was distinctly determined by the terms of the treaty: Gulf of St. Law but it was impossible that the precise spot of groumd where that angle would be found, could be ascertained before the due north line had been actually surveyed. And it appears that, misled by an error in Mitchell's Map, the framers of the treaty of 1783 may well have believed, that the due north line would not cross any branch of any of the rivers that fall into the Gulf of St. Lawrence, and that the North-west Angle of Nova Scotia would be found on the Highlands which divide the tributary streams of the River St. Lawrence from those of the St. John.
The most favorable inference to the British claim, that can be drawn from the erroneous opinion of the negotiators on that point, is founded on the double supposition, 1st. That they did not perceive, that the definition of highlands, which they adopted in the treaty, would embrace, should they happen to be mistaken in their opinion, the case which has actually taken place; 2dly. That they did intend to allot, at all events, the whole of the rivers falling into the Gulf of St. Lawrence to Great Britain, and that, had they known that the due north line would cross the Ristigouche, before it reached the highlands in which the tributary streams of the River St. Lawrence have their sources, they would have fixed the termination of that line, and the North-west angle of Nova Scotia, on the highlands which divide the waters of the Ristigouche from those of the St. John; and would have defined the boundary line, as extending thence, along the highlands which divide the rivers that empty themselves, either in. to the Gulf or into the River St. Lawrence, from those which fall into the Atlantic Ocean.
It is therefore evident, that a construction of the treaty, conforming with that presumed intention, is the utmost extent of what may possibly be claimed by Great Britain, under color of the crroneous opinion, entertained by the negotiators, respecting the length of the most westerly branches of the Ristigouche.
But the most westerly sources of a river that falls into the Gulf of St. Lawrence, are placed, in Mitchell's Map, only five miles east of the due North line.
Those sources belong in fact to the River Ristigouche which empties into the Bay des Chaleurs, although Mitchell has erroneously laid them down as being those of the River Miramichi which he designates by the name of Ristigouchi, and has made the true Ristigouche much too short. But those differences do not affect the question; it being sufficient that the sources are laid down as those of a river which empties itself into the Gulf of St. Lawrence.
It may therefore, with equal or greater probability, be presumed, that the framers of the treaty, though believing that this line would not cross that river, were sufficiently aware, that, since the interior part of the country had not been explored, reliance could not be placed, at least within five or ten miles, on the positions assigned by Mitchell to water courses and other places in the interior. And on that supposition, it being deemed necessary to provide for the contingency of an intersection by the north line of the river aforesaid, the terms used in the treaty would be adopted, with a perfect apprehension of their effect on the contingency, if it should take place.
It may also be observed, that the negotiators could not have attached much importance to the fact, whether the due North line would intersect, or pass west of the rivers which fall into the Gulf of St. Lawrence; since that circumstance could not affect the extent of territory falling to the share of the two powers respectively.
All those suppositions, on either side, rest on mere conjectures. It is probable that the framers of the treaty entertained the erroneous belief, that the due North line would not cross the River Ristigouche. All that is well ascertained is, that, contrary to that probable expectation, the North-West angle of Nova Scotia has been found on the highlands which divide the rivers that empty themselves into the River St. Lawrence, from those that fall into the Gulf of St. Lawrence, instead of those that fall into the Ri.
Gall of $1. Law. ver St. John; and that, whether on the one, or on the other of those two highlands,
the place, where thus found, is clearly embraced by the express terms of the treaty.
Under those circumstances it would be contrary to justice and to every principle of sound interpretation, to substitute, to the express terms of a treaty, presumed intentions, not proved, but only inferred from an erroneous opinion of the negotiators, on which they may or may not have acted, and on which, from the terms used in the treaty, it must be presumed they did not act. It is sufficient that the highland, which divides the waters of the St. John from those of the Ristigouche, is not, and that the Highland, which divides the waters of the Ristigouche from those of the River St. Lawrence, is a Highland that divides an Atlantic River from one that empties itself into the River St. Lawrence.
“ The first general maxim of interpretation is, that it is not permitted to interpret what has no need of interpretation."
“ Those who dispute the sense of a clear and determinate article, are accustomed to draw their vain subterfuges from the pretended intention and views of the author of that article.
. This is a rule more proper to repel them, and which cuts off all chicanery. If he, who can and ought to have explained himself clearly and plainly, has not done it, it is worse for him: he cannot be allowed to introduce subsequent restrictions, which he has not expressed."
" There can be no secure conventions, no firm and solid concession, if these may be rendered vain by subsequent limitations that ought to have been mentioned in the piece, if they were included in the intentions of the Contracting Powers.” (g)
The correct principles, thus laid down by one of the most eminent writers on the Law of Nations, may perhaps find their application in other parts of the argument. In the question particularly now under consideration, it is sufficient to observe that, if it had been intended by the treaty, that the due North line should not cross the Ristigouche, and that the North-West angle of Nova Scotia should not be placed on the Highlands which divide the branches of that river from the tributary streams of the River St. Lawrence, this could and ought to have been explained clearly and plainly in the treaty itself; and that Great Britain having not done it, she cannot be allowed, according to the principle laid down by Vattel, to introduce any restrictions or limitations, that ought to have been mentioned in the treaty, if they were included in the intentions of the Contracting Powers.
If there was even complete proof, that it had been the intention of the framers of the Treaty that the whole of the waters of the Gulf of St. Lawrence should fall within the dominions of Great Britain; another important consideration forbids any claim, on the part of Great Britain, to appeal from the terms of the treaty to those intentions.
The most easterly river, which falls into the Bay of Passamaquoddy, is that which, in Mitchell's Map, is designated by the name of St. Croix. The true Indian name ** Magaguadavic" is given to it in Map A. The westerly river called “ Schoodic” is, in Mitchell's Map, designated by the name of Passamacadie River.
The Commissioners appointed in pursuance of the 4th article of the treaty of 1794, to decide which was the true River St Croix, had before them the whole of the evidence,
(f) Unless it should be insisted that the rivers that empty theinselves into the Gulf of St. Lawrence must be considered as falling into the River St. Lawrence, a supposition which has been disproved in the first American Statement.
(g) Vattel, Bouk 2d, Ch. 17. & 263, 264.
which proves, that it was by Mitchell's Map that the framers of the treaty of 1783 Gulf ofen St. Law. regulated their joint and official proceedings. In addition to the depositions of Mr. Jay and of Mr. Adams, taken at that time, we may quote Mr. Adams' letter to Lieut. Governor Cushing, of 25th October, 1784.
“ We had before us, through the whole negotiation, a variety of maps, but it was Mitchell's Map upon which was marked out the whole of the boundary lines of the United States; and the River St. Croix which we fixed on, was upon that map the nearest river to St. John's; so that in all equity, good conscience and honor, the river next to St. John's should be the boundary." (h)
Notwithstanding that clear evidence; although the easterly river is most distinctly named and designated as the River St. Croix in Mitchell's Map; although it is from the source of that same river that Mitchell has drawn the due north line, forming the Western Boundary of Nova Scotia (or Sir Wm. Alexander's Grant;) although the fact, that that map had regulated the proceedings of the negotiators, was fully acknowledged; and although there was not the least doubt about their intentions: yet the decision was, that, according to the treaty, the Schoodic or Westerly River was the true St. Croix.
This decision was made too by an American citizen, who was selected as Umpire by the other Commissioners, and who conscientiously decided against the United States, because the River St. Croix, being no otherwise designated in the treaty than by its pame, or, as having its mouth in the Bay of Fundy, he had no other duty to perform but to ascertain, without regard to the intentions of the parties, which was the true River St. Croix. (0)
It was conclusively proved, that the Island, from which the river must have derived its name, and to which the first discoverer (De Monts) had given that of St. Croix, (k) was one situated within and some distance up the Schoodic. And the Umpire argued that, as Mitchell must, by his River St. Croix, have intended that in which the Island of St. Croix should be found to be situated, his mistake must be corrected, and could not affect the question.
By that decision the United States have, contrary to the well ascertained intentions of the framers of the treaty, been deprived of the whole territory, contained between the Rivers Magaguadavic and Schoodic, and between the two lines drawn due North to the Highlands from the sources of those two rivers respectively, (l) containing about three thousand and eight hundred square smiles. And the effect of the decision has further been, to deprive them of the Island of Grand Menan, and of those in the Bay of Passamaquoddy, all of which lie west of a line drawn from Cape Sable to the mouth of the River Magaguadavic, and therefore had never been within the limits of the Province of Nova Scotia.
Independent of the loss of territory, the boundary thus fixed is, and has proved to be, attended with as much if not more inconvenience and danger, either in time of peace or of war, to the United States, than can possibly arise to Great Britain from any part of that now in question. To that definitive decision, no objection was or could be inade: nor did it even excite any complaint against the respectable citizen, who, in making it, performed a painful but sacred duty. It is now adverted to, only in order
(h) Written Evidence, No. 22, page 206. (i) Written Evidence, No. 36.
(k) Yet the name of St. Croix was for the first time given to the River, in Sir Willianı Alexander's Grant, of the year 1621. Lescarbot, published in 1618, gives it no name; and Champlain, in the original edition of 1613, gives it no other than that of Riviere des Etchemins. Written Evidence, No. 36, pages 277 anci 278.
(1) The lines o A and $ T' in the American Toranscript of Map A.