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Bay of Fundy the source of the River St. Croix ; that is, to the north of the River St. distinct from Atlantic
John which falls into the Bay of Fundy, and of the River Restigouche which falls into the Bay of Chaleurs.
The first point to be considered in treating this question is, whether the term “ Atlantic Ocean," as used in this part of the 2d Article of the Treaty of 1783, is not contra-distinguished from the term “Bay of Fundy." This is the cardinal point of the whole of this branch of difference between Great Britain and the United States. With respect to that point, then, Great Britain maintains that throughout the whole Treaty of 1783, it is demonstrable by the Letter of the Treaty, as well as by collateral and inductive evidence, that the term “Bay of Fundy" is used as totally separate and distinct from the term “ Atlantic Ocean ;” and therefore on this, as well as on other separate and peculiar grounds, that the River St. John which falls into the Bay of Fundy is taken as distinct from those rivers which are described in the Treaty as falling into the Atlantic Ocean. We proceed, therefore, at once to treat these two essential points, which, although in the closest affinity with each other, must be considered each on its own peculiar merits.
That, in the first place, the Bay of Fundy is not to be considered as comprehended, under the Treaty, in the Atlantic Ocean, is clearly demonstrable, it is conceived, from the following considerations :
In the second article of the Treaty of 1783, and in one of its most essential points of designation, viz. that of the extreme eastern and the extreme western sea-coast Boundaries of the United States, the Bay of Fundy and the Atlantic Ocean are specifically distinguished the one from the other; the latter or extreme western boundary, being, in explicit terms, described as terminating in the Atlantic, by name, while the former or extreme eastern boundary is, in equally explicit terms, described as terminating in the Bay of Fundy, by name.
The extreme western limit on the sea coast is described as formed by a line “ drawn along the middle of St. Mary's River to the Atlantic Ocean.” The extreme eastern limit is described as formed by a line“ drawn along the middle *“ of the River St. Croix from its mouth in the Bay of Fundy,” &c.
That article after describing other parts of the general boundaries concludes thus:
“ 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."
If one of these two terms is to be taken as comprehended in the other, why specify both? The declaration that the boundaries, eastern and western, of the United States, should touch the Atlantic at each extremity of the country, would surely have been amply sufficient for all purposes of delimitation, had not the term Bay of Fundy” been intended as totally distinct from the term Atlantic Ocean.”
In one part of the Treaty, then, the terms “Bay of Fundy” and “Atlantic Ocean" are manifestly intended as distinct and separate the one from the other. But being so taken in one part, they must surely be equally so considered in every other part: for it would be contrary to all reason and consistency to assign one meaning to a term in one clause, and a different meaning to the same term in another clause of the same instrument.
It may, however, be asserted in opposition to this view of the case, that all bays and gulfs are parts of the seas with which they are connected; and that however it may be argued, that the Bay of Fundy is not a part of the Atlantic Ocean, from that ocean, whether under or independent of the Treaty, no force or ingenuity of argument can ever dissever it.
Even setting aside the specific letter and intent of the individual Treaty now, under consideration on this point, which we have above shewn to uphold the view taken by Great Britain, the argument above advanced is, we apprehend, altogether fallacious and inapplicable.
That bays and gulfs are, in the nature of things, parts of the sea, there Bay of Fundy can be no doubt ; but it must be a very vague use of language when they are distinct from spoken of as component parts of seas of specific denomination, with which Oceun. they are immediately connected. It cannot be questioned that it is the constant usage of geographers to apply specific names to the various branches or inlets of the sea, with the express purpose of presenting them to view as objects of distinct and separate consideration.
When we speak of the Gulfs of Bothnia or Finland, do we not always consider them as distinct from the Baltic? or of the Adriatic or Archipelago, as distinct from the Mediterranean? So Baffin's Bay and Hudson's Bay would be considered as distinct from the Northern Ocean, and the Gulfs of Mexico and Florida, and Chesapeak Bay, from the Atlantic. Would it be correct, or consistent with the received use of language, to affirm that St. Petersburgh is built on the Baltic, Venice on the Mediterranean, Amsterdam on the North Sea, Baltimore and Annapolis on the Atlantic Ocean ? Yet all the bays and gulfs, on which these places respectively stand, are to the respective seas, with which they are immediately connected, what the Bay of Fundy is to the Atlantic Ocean. Therefore as all those bays and gulfs are taken as distinct from the seas and oceans with which they are respectively connected, so must the Bay of Fundy be taken as distinct from the Atlantic Ocean.
In the above application of the terms bay and gulf, we refer only to such as are real branches of the sea, into which rivers may or may not discharge themselves. There is another class of bays, so called by geographers, which are merely the expansions of the mouths of rivers, of which they bear the name, such as the Penobscot, the Sagadahock, the Delaware, and others of a similar character, which can be regarded in no other light than as portions of the rivers themselves.
The above reference to universal geographical practice is made, not as the sole, or even the principal, ground on which Great Britain rests the distinction which she claims for the Bay of Fundy as separate from the Atlantic Ocean, but to shew that geographical practice, so far from being at variance with that claim, most strongly upholds and confirms it.
When the terms used by geographers to designate different portions of the sea are contained in Treaties and other solemn documents, especially when the very object is to define with precision the limits of conterminous States, the appropriate signification of such terms should be still more strictly adhered to.
In further corroboration of the same claim, it can be shewn that the distinction between the Bay of Fundy, and the Atlantic Ocean, as well as between other bays and gulfs and the same ocean, has been constantly observed in public documents, having reference to the countries and districts bordering on such bays and gulfs, and the Atlantic Ocean, respectively.
At the head of these documents must be placed Mitchell's Map*, annexed to the Convention of the 29th September, 1827, as an authentic document of reference.
That map displays, broadly and clearly, the deeply-indented Bay of Fundy, as well as the Gulf of St. Lawrence, in large and conspicuous characters, each under its proper title, and totally distinct from the Atlantic Ocean.
We abstain from citing other maps in confirmation of the same fact, because, although other maps may have been consulted in private by the British and American negotiators, it is on record that that of Mitchell alone regulated their public and joint proceedings, and is, therefore, alone available as authentic evidence.
2dly. In the grant of Nova Scotia, by James I. to Sir William Alexander, Appendix, the Bay of Fundy, and the Gulf of St. Lawrence, are specifically described and No.5, p. 32.
* Mitchell's Map B.
distinct from Atlantic
Bay of Fundy, distinguished; the former from the adjacent parts of the sea, and the latter,
as well from the sea as from the River St. Lawrence. Ocean.
3dly. Governor Pownall, in his Topographical Description of the middle Appendix, British American Colonies, published in 1776, expressly describes the Rivers No. 6, p. 33. having their sources in the ridges of highlands, and running southerly,
falling into the Bay of Fundy, or into the main ocean.”
His description is of peculiar force, and entitled to especial consideration, since, independently of the high reputation of the author, it was published but six years before the opening of the negotiations in 1782, and was consequently
most fresh in the minds of persons connected with the countries described. Appendix, 4thly. In the Royal Proclamation, issued in 1763, the Gulf of St. Lawrence No. 7, p. 34.
is designated by its appropriate title, and distinguished from the River St. Lawrence, and from the adjacent parts of the sea. Moreover, in the same document, abroad discrimination is, in other parts, made between the Atlantic and the gulfs and bays along the coast, as terms containing an entirely different sense, the one from the other. Witness the following clause: “The Government of East Florida is " bounded to the westward by the Gulf of Mexico, **** and to the east " and south by the Atlantic Ocean and the Gulf of Florida.” Thus, as in the Treaty of 1783 the Boundary Line of the United States is described as respectively touching “the Bay of Fundy, and the Atlantic Ocean," so here we find the Government of East Florida described as bounded by “ the Atlantic “ Ocean and the Gulf of Florida.” What more conclusive proof of the reality of the distinction of terms insisted on by Great Britain can be required ?
5thly. As another instance of geographical practice in distinguishing bays and gulfs from the ocean, we refer to the following Article * in “ a plan of “a Treaty with France, agreed upon by the Congress of the United States on “ the 17th September, 1776, to be proposed to His Most Christian Majesty:
“ Art. IX. The Most Christian King shall never invade, nor under any pretence, attempt to possess himself of Labrador, New Britain, Nova Scotia, “ Acadia, Canada, Florida, nor any of the Countries, Cities or Towns on the “ Continent of North America, nor of the Islands of Newfoundland, Cape “ Breton, St. John's, Anticosti, nor of any other Island lying near to the said “ Continent, in the seas, or in any gulf, bay or river.”
It is to be observed, that of the islands above specified, Newfoundland and Cape Breton are bounded on one side by the broad ocean, and in another quarter by the Gulf of St. Lawrence. St. John's (now Prince Edward's Island)
and Anticosti lie altogether within that gulf. River St.John,
Having now discussed the question respecting the Bay of Fundy, as conexcepted
un. tradistinguished from the Atlantic Ocean, and having shewn that neither ties from the according to the letter of the Treaty of 1783, nor according to generally received
geographical practice, can it be taken as comprehended in that ocean, we proceed to treat the other question closely allied to it, namely, “whether the River “ St. John, which falls into the Bay of Fundy, is intended by the Treaties to be “ included in that class of rivers which are therein described as falling into “ the Atlantic Ocean ?”
That it was not originally, and therefore is not now so intended, we shall endeavour to show, as well by the rationale of the case, as by the clearest evidence, documentary and other, furnished by the United States themselves, of the intentions of the framers of the Treaty of 1783, both before, and at, the period of the negotiations which terminated in that Treaty.
It has been seen that by that Treaty the River St. Croix, which is described as having its mouth in the Bay of Fundy, is expressly assigned as the extreme eastern limit of the United States. In the meridian of the source of this river is placed the point of departure for the whole line of Boundary, which is to be
* See « Secret Journals of the Old Congress." Vol. II. p. 11.
thence traced westward, that point of departure being the point designated in River St. John the Treaties as the north-west angle of Nova Scotia.
excepted under It was evidently determined, in this very important part of the Boundary, from the Atlanto divide from each other, at their sources, the several great rivers assigned
tic Rivers. to each power. Such intent the expression “ highlands which divide” plainly denotes; for what could be the object of selecting highlands at all in reference to rivers, if those rivers were to be divided by the Line of Boundary indiscriminately either at their sources or in any part of their course ?
Throughout the discussions relating to the limits of the United States in this quarter, both parties clearly directed their attention principally to rivers, and, moreover, to rivers in their whole extent. This appears distinctly from the proceedings of the Old Congress, and from the accounts of the negotiations in 1782, hereinafter recited.
Now the St. Croix being the extreme eastern limit of the United States, the only rivers which could have been intended to have been thus divided, were surely those which empty themselves between the meridians of the St. Croix eastward, and of the head of Connecticut River westward, thus securing to the United States the whole of each river emptying within their own territory, and to Great Britain the whole of each river emptying within her territory.
The Preamble to the Preliminary Treaty of 1782 says, that the provisions of that Treaty are founded on the basis of “reciprocal advantages” and “ mutual convenience"-on the principles of “ liberal equity and reciprocity,”—with the express design of “excluding partial advantages (those seeds of discord);” and the introduction to the very article respecting Boundaries declares, in equally express terms, that those Boundaries are adjusted
" with a view to prevent future disputes."
Is it credible that, in the very face of these earnest declarations, the framers of the Treaty should have adopted a Line of Boundary, which, in the first place, while it did really secure to the United States the whole of each river emptying within their territory, would deprive Great Britain of a full half of one, and a portion of another, of the largest rivers emptying within hers ? and, on the other hand, would give to Great Britain the lower half and entire command of the navigation of the largest river in the whole Country (the St. John) by which alone the whole timber and produce of the territory on the upper half of the same river could be conveyed to the sea, while that upper half was left to the United States ?
Such an arrangement would have contained neither reciprocity nor liberal equity, neither reciprocal advantage nor mutual convenience in itself, nor would it have tended to prevent disputes ; it would, on the contrary, have tended to create a constant source of discord and contention between both parties, which could have been terminated only by one or the other obtaining possession of the whole river so obstructed and mutilated.
We do not dwell on an anomaly which attends the line destined to divide the St. John, if an Atlantic River, from the St. Lawrence Rivers ; namely, that that line would be absolutely obliged to cross the St. John in the middle of its course, in order to arrive at its source, for the purpose of dividing it from the rivers flowing into the St. Lawrence. We will merely observe, that neither in the Treaty itself, nor in any account extant of the negotiations which led to it, is any mention made of such intersection ; a silence, if not fatal, at least very adverse, to the supposition of the intention. Had it been intended that the line of Boundary should cross so marked, and, as it will presently appear, so well known, a feature of the country as the River St. John, there can be no doubt that such a peculiarity would have been specifically adverted to.
It is obvious that all the arguments derived from geographical practice and from locality, which have been employed to uphold the claim of Great Britain to exemption for the Bay of Fundy and the River St. John from the conditions of
River St. John the Treaty, must apply with still greater force to the Bay of Chaleurs and the der the TroaRiver Restigouche ; first, because that bay does not even open directly into the ties from the Atlantic, but into a second bay, namely, the Gulf of St. Lawrence; and,
secondly, because both the bay and the river are still further removed from the extreme eastern limit of the United States. We, therefore, abstain from here alluding more at large to that bay and river.
We now proceed to show, by irrefragable evidence, that both before and at the period of the negotiations in 1782, the authors and conductors of those negotiations, especially the Americans, never had a thought of including the River St. John amongst those rivers which are designated in the Treaty as fall
ing into the Atlantic Ocean. Appendix,
In a work annexed to this statement, entitled “The Secret Journals of the No.8, p.38. Acts and Proceedings of Congress,” published in the United States in 1821,
under the authority of Congress, a full account is given of the proceedings of the American Congress relative to the negotiations which preceded and introduced the preliminary articles of 1782, subsequently embodied in the definitive Treaty of 1783. This account throws great light on that most important transaction.
Amongst the documents most worthy of attention contained in that work, are the original instructions given by Congress to their Commissioner appointed to conduct the negotiations, which instructions include the first draft of the article respecting Boundaries, as adopted in Congress after long and anxious deliberation.
We here insert such extracts from those instructions as more immediately relate to the specific point now under discussion.
August 14, 1779. Congress proceeded in the consideration of the instructions to the Minister “ to be appointed for negotiating a peace, and unanimously agreed to the fol
lowing draft of instructions to the Commissioner to be appointed to nego" tiate a Treaty of Peace with Great Britain.
“ You will herewith receive a commission giving you full
power to nego“ tiate a Treaty of Peace with Great Britain, in doing which you will conform “ to the following information and instructions."
After reciting the first and second articles of the instructions, the third is as follows:
" 3d, The Boundaries of these States are 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 Atlantick Ocean, to the north-westernmost head of Connecticut River; “ thence down along the middle of that river to the 45th degree of north “ latitude ; thence due west in the latitude 45° north from the equator, to “ the north-westernmost side of the River St. Lawrence, or Cadaraqui ; thence
straight to the south end of Nepissing; and thence straight to the source “ of the River Mississippi : west, by a line to be drawn along the middle of “ the River Mississippi from its source, to where the said line shall intersect " the thirty-first degree of north latitude : south, by a line to be drawn due
east from the termination of the line last mentioned in the latitude of “ 31° north from the equator, to the middle of the River Appalachicola, or “ Catahouchi ; thence along the middle thereof to its junction with the Flint “River; thence straight to the head of St. Mary's River; and thence down “ along the middle of St. Mary's River to the Atlantick Ocean: 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, comprehending all islands within twenty leagues