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latitude until it strikes the river Iroquois or Cataraguy ; thence along the
middle of said river into Lake Ontario, through the middle of said lake,
until it strikes the communication by water between that lake and Lake
Erie ; thence along the middle of said communication into Lake Erie,
through the middle of said lake, until it airives at (he water communi-
cation between that lake and Huron ; thence along the middle of said
water communication between that lake and Lake Superior; thence
through Lake Superior, northward of the isles Royal and Philipeaux, to
the Long Lake ; thence through the middle of said Long Lake, and the
communication between it and the Lake of the Woods, to (he said Lake
of (he Woods; (hence through said lake to the most northwestern jioint
thereof; and from thence on a due west course to the river Mississ'ppi ;
thence by a line to be drawn along the middle of the said river Missis-
sippi, until it shall intersect the northernmost part of the thirty-first de-
gree of north latitude. South, by a line to be drawn due east from the
termination of the line last mentioned, in the latitude of thirty-one degrees
north of the equator, to the middle of the river Appalachicola or C;ita-
houche ; thence along the middle thereof to its junction witli the Flint
river ; thence straight to the head of St Mary's river ; thence di)wn alpng
the middle of St. Mary's river to the Atlantic ocean. East, by a line.
to he drawn along the middle of the river St. Croix, from its mouth into
the bay of Fandy to its source ; and from its source, directly north, to the
aforesaid hi gh lands which divide the rivers that fall into the Atlantic ocean
from those ivhich fall into the river St. Lawrence, com{)rehending all is-
lands within twenty leagues of ;my part of the shores of the United States,
and lying between the lines to be drawn due east from the points where
the aforesaid boundaries between Nova Scotia on the one part, a;ul East
Florida on the othei", shall respectfrdly touch the bay of Funciy, and the
Atlantic ocean, excepting such islands as now are, or heretofore have been,
within the limits of the said Province of Nova Scotia."

The first ar-ticle describes, by name, the several States composing the
United States, and, had the treaty stopped here, without desciii)ing their
boundaries more minutely, there could have been no doubt but that all
the territory embraced within the charter limits, or- within (he jurisdic-
tion of Massachusetts Bay, passed by that description. Here, from the
use of the term Massachusetts, was an evident intention to conform to the
lines as they existed before the treaty, which have been already shown



94



[Senate Doc. No. 171. J l!



from the documents hereinbefore cited, which are of that clear and ex-
plicit character which relieves the subject from all uncertainty and doubt.

But when the subject is still farther pursued, and the boundaries are
more minutely described, what was clear befoic is still made more clear
and explicit. To be more particular, the northwest angle of Nova Sco-
tia, alter it is ascertained by the rule given in the treaty, is the point from
which the northern line starts. " From the northwest angle of Nova Sco-
tia, to wit : that angle which is formed by a line drawn due north fronn
the source of the river St. Croix to the highlands." Heie we may ask,,
what angle was intended ? Was it an angle to be formed on the side line
of the Pi evince, ore hundred or more miles from the real and true north -
west angle of Nova Scotia ? Or was the real and true angle of the I'rov-
ince, at the point where its western line intersected (he line of the Prov-
ince of Quebec ? The true construction is too obvious to admit a doubt.
It is perfectly clear, from the plain and most natural and obvious con-
struction of the language used, that by the norlhwcst angle of Nova Sco-
tia was truly intended the northwestern extremity of that Province.

The de>ci iption then proceeds : " along the said highlands which divide
those rivers that empty into the river of St. Lawrence Irom those which fall
into the Atlantic ocean." The idea that the words of the treaty require
a range of mountains to form the line is totally false and absurd. If the ;

commissioners intended to describe a line nursuin'r the highest rantre of

loo r^

mountains between the Atlantic on the one hand, and the river St. Law-
rence on the other, they would have used the teims fittest for such de-
scription, and not have used the words wiiich plainly and distinctly were
intended to embrace any height of land, from the lowest to any other el-
evation, provided it did divide the waters falling into the river St. Law-
rence Irom those falling into the Atlantic ocean. If mountains were
found there, they were intended ; if there were no mountains or bills, and
the lands only ascended gently iiom the river St. Lawrence, and again
descended towards the main stieams falling into the Atlantic, constitu-
ting in lact a long and extended plain, from the highest pai ts of which the
streams run northwardly and westwardly into the river St. Lawrence,
and southerly and easterly into the Atlantic, such a plain is the highland
truly intended by the treaty, and the line is on that part of the j)lain from
which the waters How in different directions, if the lands are only high
enough for the water simj)ly to pass off in different directions, as com-
pletely and exactly corresponds with the description in the treaty, and
are the highlands truly and eminently intended by it.

The tieaty describes but two classes of rivers, as having any connex-
ion with this part of the boundaries of the United States, to wit : such
as flow into the river St. Lawience, and those which fall into the Atlan-
tic. Although the river St. Lawrence itself falls into the Atlantic ocean,
it is alludeil (o in a peculiar manner, to distinguish it fiom all other riv-
ers, and to place it and its tributary streams in opposition to them,
whether they flowed into Long Island sound, Kennebec bay, Penobscot
bay, the great Massachusetts bay, the bay of Fundy, or the bay of Chal-
curs, or into any other part of the Atlantic ocean. The language of the
treaty being thus clear and exj)licit, it leaves no doubt on the mind that
by (he highlands of the treaty which divide the waters was intended that
range of lands, whether high or low, in which the tributaries of the St.



[ Senate Doc. No. l71. | 9 5

Lawrence have their sources, and from which they flow. To search,
therefore, for mountain ranges, or for tlie greatest height of hud be-
tween (he river St. Lawrence and the Atlantic ocean, to fulfil the terms
of the treaty, is absurd and preposterous. In the latter part of tlie arti-
cle quoted, in describing the east boundary, the descriptive language of
the lirst }>art of the article is nearly repeated : " 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, and from its source directly north to the afore-
said highlands which divide the rivers which fall into the Atlantic ocean
from those which fall into the river St. Lawrence."

Although, from the French having erected their crosses at (he mouths
of various rivers, and having at various times given them names from
that circumstance, and the part of the country between the livers St.
John's and Penobscot not having been early settled, and seldom visited
except for the purpose of traffic with the natives, doubts reasonably
might arise as to the true river St. Croix ; still, when (hose doubts were
removed, and the river clearly ascertained, a certain point was fixed,
iVom which the due north line was to start, and nothing remained but to
employ artists (o survey the line and erect its monuments. This seems
to have been a point conceded in the treaty of amity, commerce, and
navigation, concluded at London, November 19, 1794, and in all the dis-
cussions under the 5th article thereof.

Upon the clear and explicit language of the treaty itself, before any
intelligent and impartial tribunal, the question of boundary and jurisdic-
tion might be safely placed, with a perfect confidence in the issue. But
the treaty, though definite in its descriptions, and requiring no foreign
aid in its interpretation, only adopted the boundaries of Provinces which
had been defined, established, and recognised by the Crown and Gov-
ertment of Great Britain, in their different acts, from 1621 to 1775;
which will appear by a recurrence to the descriptive language contained
in the patents, charters, proclamations, and acts of Parliament, before
quoted, and nearly in the same ian9;uage. There can, therefore, be no
doubt that the ministers of both Governments intended to adopt, and
did adopt in the treaty of peace, as the boundary of the United States,
the boundaries between the Provinces of Quebec and Nova Scotia, on
the one part, and Massachusetts on the other part, which had been es-
tablished by, and had long been familiar to, the Government of Great
Britain, 'i'his construction, if any further support were necessary, is
amply and fully supported by the discussions which led to and the
manner in which the boundaries were concluded by the ministers who
negotiated the provisional treaty of peace. The negotiation was carried
on in form with Mr. Oswald, who advised with Mr. Fitzherbert, the
minister to the court of Versailles, but in fact with the British cabinet.
Mr. Oswald did little or nothing more, not having authority, than to
make such propositions as the British cabinet, from time to tiine, accord-
ing to circumstances, commanded, and received such as our ministers
made, until near the close of the discussion, when he was clothed with
full powersr.

A provision in favor of the loyalists was long and ardently urged by
the British, and as ardently resisted by our ministers ; the right to the
fisheries was urged and insisted on by our ministers, and made a sine



96 f Senate i)oc. No. l7 I. |

qua non by a part, and resisted by the Biitish, but finally adopted ; both
of whLch topics occupied much time. 'I'he fixinj^ and defining the bound-
aries of the United States also occupied much time, and no part or por-
tion of it was so diligently examim.d ant! dibicussed as the eastern and
northern bviundaiies ol the present State of Maine. The liritish, in the
tirst pi icf, insisted upon Piscatatpia ii\er as the eastern limit of the Uni-
ted States, then retreated to the Kennebec, and as a last resort would
consent to go as far as the Penobscot. During this, as during the other
parts of the discussion, messengers were continually crossing and re-
ofossing the channel ; among the messengers and aids to the Biitish, the
ancient clerk of the board of trade and plantations appeared with volumes
of records from that department, from wliich he read whatever there was
which tended to show ihc District of Maine, or any part of it, was not
before that time v.ithin tiie jurisdiction of Massachusetts Bay. The
American ministers, in their turn, produced sundry acts of the colonial
Goveinment of Massachusetts Bay, showing the jurisdiction which had
been exercised by her, the report of the attorney and solicitor generals,
who had, upon the matter being referred to them, decided upon the sun-
dry petitions, applications, and claims, made for all the country betv\een
the Sagadahoc, (^Kennebec,) and St. Croix; and their decision, after
examining all the evidence, was against them, and in favor of the juris-
diction of Massachusetts Bay. Also, Governor Hutchinson's report,
wherein the right of Massachusetts Bay is discussed, and a volume of the
doings of the commissioners at Paris.

VVlien the Biitish insisted upon limiting the United States to the Pis-
cataqua, the Kennebec, or the Penobscot, the ministers of the United
States, or some of them, insisted upon going to the St. John's, but finally
agreed to adhere to the charter of i\iassachusetts Bay. That they did do
that, most manifestly appears from a comparison of the treaty with the
patents, charters, proclamations, and acts of Parliament, hereinbefore
quoted.

That it was the intention of the commissioners to adopt the boundaries
between the Provinces ol Quebec and Nova Scotia, on the one part, and
Massachusetts Bay on the other part, was expiessly conceded and admit-
ted on the part of the British, in the discussions under the 5th article of the
treaty of 1794. It even, if possible, was more than admitted ; it is one,
if not the chief, basis ol the whole argument, and was enforced with great
ability.

The British agent, in his memorial of claim, says : " By the said 2d
article, hereinbefore cited, of the treaty of peace, it appears to be clearly
intended that no part of the Province of Nova Scotia should be thereby
ceded by his said Majesty to the said United States. But that the same
Province of Nova Scotui, according to its ancient and former limits,
should be and lemain a part of tlu; territory of his said Majesty, as his
said Majesty then and before that time had held raid possessed the same."
Again, in his argument, he says : " 'i'o facilitate the investigation of the
present question, there appears to be ore leading principle that appears
to be explicitly established by the very terms of the treaty of peace, and
which might indeed be fairly considered as an axiom in the present dis-
cussion, to wit : That it iras clcaili/ intended, hij the second article of
ike treaty y that no part of the J*rovince oj Nova Scotia should be thereby



[ Senate Doc. ^'u. 171. | 97

ceded by his Majesty to the United States. The words made use of in
that article will not admit of a diflerent construction, the United States
being expressly bounded east by the eastern boundaries of the Province
of Nova Scotia. The description of the treaty in this part of the bounda-
ries of the United States is as follows : " From the northwest angle of
Nova Scotia, to wit : that angle which is formed by a line drawn due
north from the source of the St. Croix to the highlands which divide
those rivers that empty themselves into the St. Lawrence from those
which fall into the Atlantic ocean." Now, if the northwest angle of
Nova Scotia, agreeable to these clear and express words of the treaty,
is formed by such a north line from the source of the St. Croix to the
highlands, that north line and those highlands must be the western and
northern boundary of Nova Scotia.

And the British agent, in pursuing his argument further, says that, by
the treaty of 1763, " all the French possessions upon the continent of
North America were ceded to Great Britain ; the Province of Quebec
was created and established by the royal proclamation of the 7th of Octo-
ber of that year, bounded on the south by the highlands which divide the
rivers that empty themselves into the river St. Lawrence from those
which fall into the sea or Atlantic ocean^ thereby altering the northern
boundary of the Province of Nova Scotia from the southern shores of the
river St. Lawrence to those highlands ; theie being no longer any ap-
prehension of disturbances from the French, it now became necessary,
for the settlement of the country that had been in dispute between the
two nations, to ascertain the boundary line between the Provinces of
Nova Scotia and Massachusetts Bay."

Having quoted in the preceding pages the main documents on which
our title rests, theie will not, in the sequel, be a necessity for anything
more than general allusions. By a recurrence to the history of that time,
it will be seen that the treaties were opposed in the British Parliament,
but they were opposed by those who had lately been in power, and op-
position to the ministry seems to have constituted the leading objection;
so far as the treaty with the United States came in question, the objections
raised were, on account of there being no provision in favor of the loyal-
ists, and the right to the fisheries being secured to the United States ; but
there was no objection to it on account of the boundaries therein pre-
scribed to the eastern part of the United States. If the boundaries had
not been such as were well known, and familiar from their own records,
the variance would have produced scrutiny ; and if any objection could
have been raised against it on that account, it would have been brought
forward to increase and enforce their other objections.

When the river St. Croix had been consecrated by De Monts in 1604,
and by its being the first resting place of Europeans, who became per-
manent settlers in the northern parts of North America ; and when, from
that circumstance, and from the expedition of Sir Samuel Argall, its name
found its way across the Atlantic, yet from the imperfect geographical
knowledge at that time, the position of it could not have been known to
the Europeans, and when, in the prosecution of the settlement of the coun-
try, other places became more alluring, and the river St. Croix and the
country on its borders did not become the site of any settlement or military
post, and the natives were there left to pursue their fisheries and ^the
7



98 f Senate Doc. No. 171. j

chase Avilhout molestation, and when, abo, many other rivers on the
coast were ai'lcrwaids designated by the same name, and when all the
maps prior to the American Revolution were injperfect, it is not wonder-
ful that doubts, and serious doubts, aiose as to which river was intended
as the boundary between the Province of Massachusetts Bay and the
Province of Nova Scotia. Hence, as the river St. Croix was a part of
the boundary between the Pro^ inccs, \^hen the settlements on the coast
began to approach each other, it became necessary to ascertain the river
duly intended, to prevent collision and the conflict of jurisdiction.

Before the American Revolution, and as early as the year 1764, it had
become the object of the serious research and investigation of the re-
spective Provinces. From the researches of the agents of die Province
of Massachusetts Bay, made on tlie spot, from the concurrent information
of all the natives, and from all the maps in their possession, they were
convinced that the river Magaguadavic was the river St. Croix : such
was the tradition, and such was the conclusion.

It generally was considered and believed in the Province of Massachu-
setts Bay, that it was bounded east by the river Magaguadavic and by a
line drawn due north from its source to the highlands which divide the
riveis that cm])ty themselves into the St. Lawrence from those which
fall into the sea ; or, in other words, by a line drawn due norlh from the
source of the said Magaguadavic river to the southern line of the Province
of Quebec, which had, by proclamation, been cieated the preceding year.
The Province of Nova Scotia, on the other hand, believed that the
Province extended westward to the river Schoodic, and was bounded
west by the east line of the I^rovince of Massachusetts Bay, and north
hy the aforesaid south line of the Pio\ ince of Quebec. Impiessed with
such a belief, the Governor of Nova Scotia, as the settlements extended
westward, and individuals wished for grants of land made them, and
from the year 1765 to 177 1, made sundry grants of land, lying between
ihc Magaguadavic and the Schoodic rivers.

Such were the dilTerent opinions entertained at the commencement of
the Revolution, and such they continued to be, when the provisional
Ireaty and the treaty of peace were concluded. When the Piovinces
were cut asunder, and ceased to be undei' the control of the same general
sovereignty, and after the clo.se of the war, the loyalists settled on the
eastern banks of the Schoodic, and extended their settlements between
that and the Magnguadavic rivers, under the grants of the Piovince of
Nova Scotia or the Crown ; the attention of Massachusetts was aroused,
and called distinctly to the subject, and the (iovernment, July 7, 1784,
passed a " resolve for appointing agents to the eastern |)art of this State,
Id inform themselves ol encroachments made by the British subjects,
and instructing them how to proceed." The agents were appointed,
repaired to the place where the dispute existed, viewed the rivers, and
made all such other imjuiries as were within their powei, and became
convinced that th(! river M;ig.iguadavic was the river St. Croix of the
treaty of 1783. In answer to in(juiiies made by the Lieutenant Governor
of Massachusetts, dat(;d Aulevil, near Paris, October 25, 1781, the late
John Adams, one of the negotiators of the provisional and th e reaty of
peace, says: "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



[ Senate Doc. No. 171. J 09

boundary line of the United States; and the river St. Croix, which was
fixed on, was, upon (hat map, the nearest to the St. John : so that, in
all equity, j^ood conscience, and honor, the river next to the St. John
should be the boundary. I am p,lad the Geneial Court are taking eaily
measures, and hope they will j)ursuc them steadily until the point is
settled, which it may be now amicably ; if neglected long, it may be
more difficult." Massachusetts became confirmed'in her claim, as her
inquiries and reseaichcs were extended. She pressed her claim upon
the consideration of Congress, and upon the consideration of the Gov-
ernors of Nova Scotia and Now Brunswick. Representations were
made by Congress to the Government of Great Britain, through the
minister of the United States.

The different parties, so far from settling the difficulties, probably be-
came more and more confirmed in their different opinions. After the
organization of the Government of the United States under the constitu-
tion, by a resolve passed February 1st, 1790, it was " Resolved, That his
excellency the Governor be, and he hereby is, requested to write to
the President of the United Stales, in behalf of this Commonwealth,
informing him that the subjects of his Britannic Majesty have made, and
still continue to make, encroachments on the eastern boundary of this
Commonwealth, in the opinion of the Legislature contrary to the treaty
of peace ; and that his excellency be requested to forward such docu-
ments as may be necessary to substantiate the facts." Thus Massachu-
setts called on the Government of the United States to protect them in
the possession of their territory.

The doubts which had arisen extended no farther than to what river
was intended by the river St. Croix in the treaty of 1783, the treaty only
describing it by its name ; nor could they, for when that was settled, the
rule was clearly and distinctly given for finding the northwest angle of
Nova Scotia. That is clearly implied in the first part of the fifih article
of the treaty of 1794 ; for it says : " Whereas doubts have arisen what
river was truly intended under the name of the river St. Croix, men-
tioned in the said treaty of peace, and forming a part of the boundary
therein described, that question shall be referred to the final decision of
commissioners." The same article made it the duty of the commission-
ers, "by a declaration under their hands and seals, to decide what river
was the river St. Croix intended by the treaty, and, further, to describe
the river, and to particularize the latitude and longitude of its mouth and
its source." If any other doubts could have existed, or if the residue of
the line could not have been ascertained by a survey, or if it had not
been considered that ascertaining the river St. Croix settled the whole
dispute, and if such were not the convictions of the contracting parties,
it is not unreasonable to suppose that further provisions would have been
introduced into the treaty,

It was contended by the agent of the United States, before the com-
missioners, that the river Magaguadavic was the river St. ('roix truly
intended by the treaty of 1783, and he founded his claims and argument
on many depositions of the natives, and of the persons who first settled
in that part of the country, on the examination and reports of dgents,
on the letters and testimony of several other persons, and on sundry
maps.



100 I Senate Doc. Ko. 171. J

It was contended by the agent for his Britannic Majesty, that the
river Scoudiac was the river St. Croix truly intended by the treaty of
1783, and he founded his argument on the grant to Sir William Alexan-
der, Les Carbot and Champlain's histories of the voyages of De Moots,
and their desciiption of tiie country, the commissions to Governors of
Nova Scotia, from 1719 to 1771, the pioclamations of 1763, and two



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 12 of 56)