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cluding that island, and all oihei- islands icilliin .six leagues of the const,
excepting our said island of St. John, which we have thought fit to erect
into a separate (Government ; and to the soutinvard by the Atlantic
ocean, from the said cape to Cape Sable aforesaid, including the island
of that n.ime, arxl all other islands within forty leagues of the const, with
all the rights, members, and a|)pui tenances, whatsoever, thereunto be-
longing.

And we do hcrc!)y ic'(|nire and command you to do and execute all
things, in due manner, that shall belong unto your said command, and
the trust we have iej)oscd in you, according to the several powers and



[Senate Ddc. No. 171.] 137

authorities granted or appointed you by the present commission, and the
instructions lierewith «^ivcn you, or by such further powers, instructions,
and authorities, as shall, at any time hereafter, be granted or appointed
you under our signet and sign manual, or by our order in our privy coun-
cil, and according to such leasonable h\vs and statutes as are now in
force, or shall hereafter be made or agreed upon by you, with the advice
and consent of our Council, and the Assembly of our said I-*iovince un-
i der your Government, in such manner and ibrm as is hereafter expressed.



No. 10.



The act of Ike Erilish Parliament^ of the \\th. year of George 2d, 1774,
relating to the Province of Quebec, provides as follows :

That all the territories, islands, and countries, in North America, be-
longing to the Crown of Great Britain, bounded on the south by a line
from the bay of Chaleurs along the highlands which divide the riveis
which empty themselves into the river St. Lawrence from those which
AUl into the sea ; to a point in the 45th degree of noith latitude on the
eastein branch of the river Connecticut, keeping the same latitude di-
rectly west through Lake Champlain, until, in the same latitude, it meets
the river St. Lawrence; from thence up the eastern bank of said river to
Lake Ontario ; thence through the Lake Ontario, and the river com-
jnonly called Niagara; and thence along by the eastern and southeastern
bank of Lake Erie, following the said bank until the same shell be in-
tersected by the northern boundary granted by the charter of the Prov-
ince of Pennsylvania, in case the same shall be so intersected; and from
thence along the said north and west boundary of the said Province, until
the said western boundary strikes the Ohio ; but in case the said bank of
said lake shall not be found to be so intersected, then following the said
bat k until it shall arrive at that point of the said bank which shall be
neatest to the northwest angle of the said Province of Pennsylvania, and
thence by a right line to the said northwest angle of said Province, and
thence along tlie western boundary of said Province until it strikes the
Ohio, and along thft bank of the said liver, westward, to the bank of the
I^Iississippi, and north to the soutliern boundary of the territoiy granted
to the merchants, adventurers of England, trading to Hudson's bay ; and,
also, all such territories, islands, and countries, which have, since the
lOlh day of February, 1763, been made part of the Government of New-
foundland, be, and they are hereby, during his Majesty's pleasure, an-
nexed to and made a part of the Province of (Quebec, as created and
established by the said royal proclamation ot the 7th of October, 1763.



138 I Senate Doc. No. 171. |

No. 11.

Extract from the British As;cnt\<i argument before the Commissioners
under the fifth article of the treat}/ of amity, commerce, and naviga-
tion, concluded between the United States and Great Britain, at Lon-
don, November 19, 1794.

Hy the 12th section of the act, entitled " An act to restrain the trade
and commerce of the Province of Massachusetts Bay and New Hamp-
shire, and colonies of Connecticut, and Rhode Island and Providence
Plantations, in North America, to Great Britain, Ireland, and the British
islands in the West Indies ; and to prohibit such provinces and colonies
fiom carrying on any fishing on the banks of Newfoundland, or other
places therein mentioned, under certain conditions and limitations;"
they say, it is provided and enacted, " that the river which emptieth it-
self into Passamacadie or Passamaquaddy bay on the western side, and
is commonly called or known by the name of St. Croix river, be held
and deemed, for all the purposes in this act contained, to be the bound-
ary line between the Piovinces ot Massachusetts Bay and Nova Scotia."

This act creates no new boundary ; it merely recognises, confirms, and
establishes, the river St. Croix as a boundary between the Provinces of
Nova Scotia, in the patent to Sir William Alexander, in 1621 ; which
was agreed upon, settled, known, and acknowledged, as the boundary
between the Province of Nova Scotia and the territory of New England,
granted to the Council of Plymouth in the year 1620, which, after the
surrender of their grand charter, was the boundary between Nova Sco-
tia and the teiritory granted tt) the Duke of York, in 1664, which was
recognised as the western boundary of Nova Scotia, by the charter of
William and Mary to the Province of Massachusetts Bay, in 1691, and
which, from the treaty of Utrecht, in 1713, was the boundary between
the Provinces of Massachusetts Bay and Nova Scotia, received and es-
tablished by the Crown, and known, acknowledged, and acquiesced in
by the Government of Massachusetts Bay.

That from the time of the passing of this act of Parliament, in 1774,
the boundaries of the Province of Nova Scotia remained unaltered to
the treaty of peace, in 1783, will not, it is presumed, be denied. And
it will not be diflScult now to show that the river Scoudiae, under the
name of the river St. Croix, formed a part of the boundary dcsciil)ed in
that treaty.

It is sullicient here to observe, that at the time the treaty of peace was
made, in 178.'}, the Provinces of Quebec and Nova Scotia belonged to
and were in the possession of the Crown of Great Britain, and that his
Britannic Majesty, at that time, had an undoubted right to cede to the
United States of America such part of these territories as he might think
fit ; and that in making the cession of the territoiy comprised within the
boundaries of the United States, as described in the second article of the
treaty of j)eace, his Majesty must be supposed to have used the terms de-
scribing these bouiid;ui(s in the sense in which they had been uniformly
understood in the British nation, and recognised in public documents and
acts of (Government. In this sense, and in no other, could they have then
been understood, or can they now be claimed or insisted upon by the



[Senate Doc. No. 171. J 130

United States. In this sense, and in no other, is his Majesty hfiund to
give tlie possession. Whatever liver was at that time known and re-
cognised by his Majesty and the Hiitish (iovernment as the river St.
Croix, forming a boundary between the Province of Massachusetts Bay
and Nova Scotia, that liver, and no other, can now be churned as a part
of the eastern boundary of the United States. It is suliicient, that in this
act of Parliament the river St. Croix is described by a particular location
and boundaries which cannot be mistaken, known to both paities at the
time, and assented to on the pait of the United States by their accepting
the act, and nut giving any local designation of the river which they now
claim, or of any other river than that thus ascertained by precise descrip-
tion, and known by them to have been established, and at the time con-
templated by Great Britain, as the boundary between the Provinces.

If this principle were once departed from, there would be no check to
construction on the subject, though it would be fortunate to his Majesty's
interests if he were not thus bound, as it might be clearly shown, in that
case, that the river Penobscot, once, indiscriminately with other rivers
upon this coast, called the St. Croix, was the true boundary, by which
Nova Scotia or Acadie was ceded to his Majesty, by the treaty of Utrecht,
and ought in such case, by the principles of the law of nations, to be es-
tablished as the eastern boundary of the United States.

But the words in the 12th section of the act of Parliament, above re-
cited, do not in anywise relate to, or suppose, any subsisting doubts about
the locality or identity of the river called or known by the name of the
St. Croix river, but have reference, as has been fully shown, to the an-
cient limits of the Province of Nova Scotia, as establislied by the original
grant of it to Sir William Alexander, fiom King James the first, in the
year 1G21, recognised in all subsequent public documents and transac-
tions relating thereto, and claimed by the Province of Massachusetts Bay
as their eastern boundary, under the charter of King William and Queen
Mary, in 1691.

EXTRACT, &C.

The most accustomed and convenient rule in cases of this kind is to
leave to each Power, respectively, the sources of those rivers that empty
themselves, or whose mouths are within its territory upon the seacoast,
if it can be done consistently with, or in conformity with the intent of the
treaty. If it can be shown that this rule, in the present case, can be
adopted consistently with what has been shown to be the intent of the
treaty, it will form an unanswerable argument in favor of a compliance
with the rule, more especially if a difl'erent .construction will involve the
inconveniences intended to be avoided by so just a principle of interpre-
tation.

Let us in this view attend to the words made use of in the treaty de-
scribing the first station or boundary from which all the other boundaries
of the United States are to be traced, viz : from the northwest angle of
Nova Scotia, viz : That angle which is formed by a lino drawn due
north from the source of St. Croix river to the highlands which di-
vide those rivers that empty themselves into the river St. Laurence
from those which fall into the Atlantic ocean. It appears from a map
actually compiled in most instances from actual surveys, an authentic copy



UO [ Senate Doc. No. 171. ]

of which is now hcfoie the hoard, that a line drawn due noith fiom tlic
soiuce of the Cheputnatocook river, or r.oithern branch of the river j
Scoudiac or St. Croix, will not intersect the highlands here described, '
but will intersect the river Resti}z;ouche, which empties itself into tlie
hay of Chaleiirs, which falls into the gulf of St. Lawrence, and will also
intersect the Metabediac lake, ^\hich is the head or souice of the rive r
likewise falling into the bay of Chaleiirs. In addition, therefore, to the
argument drawn from the incon\'cnience resulting from its cutting olF the
sources of these rivers, which discharge themselves within the British
territory upon the scacoast, the source of (his branch of the Scoudiac or
St. Croix cannot be the source intended by the treaty of peace, because
in such case we cannot arrive at the northwest angle of Nova Scotia,
which is the fust bound or station upon which the other boundaries de-
pend, as they must be traced from thence, that is to say, " that angle which
is found by a line drawn due north from the source of St. Croix river to
the highlands which divide those rivers that empty themselves into the
river St. Lawrence from those which fall into the Atlantic ocean." For,
if the fact he as above stated, should a line he traced due north from the
source of the Cheputnatecook, if the highlands in such case are on this
side or to the southward of the river Restitcouche, they w ill divide the
rivers that lall into the Atlantic ocean, or bay of Fundy, from those that
fall into the gulf of St. Lawrence ; if they are between the river Resti-
gouche and the Metabediac lake, they will divide the rivers which, from
different sources, unite and fall into the gulf c( St. Lawrence ; if they
are beyond this lake, they will divide the rivers w hich fall into the gulf
of St. Lawrence from those which fall into the river St. Lawrence ; the
requisite angle, therefore, ^vill not be found u|)on this line. But if a line
is traced due north from the source of the western or main branch of 'he
river Scoudiac or St. Croix, it will run to the westward of the sources of
all the rivers that fall into the gulf of St. Lawrence, and Avill strike the
highlands which divide the rivers that fall into the Atlantic ocean from
those which empty themselves into the river St. Lawrence, and conse-
(jueiitly give the requisite angle or fust bound.

'i here is certainly a clear distinction in the grant to Sir William Alex-
ander between the river St. Lawrence and the gulf of St. Lawrence, or
rather of Canada ; the boundary line by this grant, after striking that
river, is to follow the course of it eastward to Gaspee, which lies to the
northward of the bay of Chaleurs, and afterwards the gulf is mentioned,
and the words made use of in the grant seem (o import a considerable dis-
tance eastward, between the line where it strikes the livcr of Canada or
St. Lawrence and Gaspee.

it is far from being certain that the ridge of highlands which divides
the rivers that empty themselves into the river St. Lawrence i'rom those
which fall into the Atlantic ocean is continued to the eastward of the
sources of the rivers which fall into the gulf of St. Lawrence ; but wheth-
er thus continued oi- not, tht; inlorence is clear, from the foregoing facts
and reasoning, that neither the Cheputnatecook, nor consecpiently the
Magaguadavic, or any other river whose source is eastward of the source
of the Cheputnatecook, can be the river intended under the name of the
river St. Croix in the treaty of peace.

But to apply these facts to the point more immediately under consider-



[i^'ciiate Doc No 17i. | Ml

ation, whether a line due north from the souicc of the wcstein or main
hianch of the river Scoudiac or St. Croix, will leave to each oi" the i)artios
to the treaty the sources oi" tliose rivers that ctni>ty themselves or whose
mouths are within its territory, upon the seacoast, respectively.

The cfi'ect, so far as it rcj^ards the United States, is completely secured
by the treaty, in all events ; and thence we have further reason to suppose
it was intended to he reciprocal in this respect, if a just interpretation
will warrant it.

A line due north from the source of the western or main branch of the
Scoudiac or St. Croix will fully secure this effect to the United States
in every instance, and also to Great Uritain, in all instances except in that
of the river St. John, wherein it becomes impossible., by reason that the
sources of this river are to the westward, not only ot the westein bound-
ary line of Nova Scotia, but of the sources of the Penobscot and even of
the Kennebec, so that this north line must of necessity cross the St. John ;
but it will cross it in a patt of it almost at the foot of the highlands, and
where it ceases to be navigable. But if a north line is traced from the
source of the Cheputnatecook, it will not only cross the river St. John,
within a!)out fifty miles from Fredericton, the metropolis of New Bruns-
wick, but will cut off the sources of the rivers which fall into the bay of
Chaleurs, if not of many others, probably of the Meramichi among tliem,
which fall into the gulf of St. Lawrence, and thereby be productive of
inconvenient consequences to the two Powers, if not of contention be-
tween them, instead of " terminating their differences in such a manner
as may be best calculated to produce mutual satisfaction and good under-
standing," which is one of the principal and avowed objects of the treaty.
Had the treaty intended that this north line should intersect a number
of rivers which empty their waters througii a British Province into the
sea, a right of navigation or passage down those rivers would doubtless
have been secured to the United States by the treaty. That this was
not the intention of the treaty, not only appears from the facts and rea-
soning that have already been adduced, but from a further consideration,
that in most, if not all, the maps of the interior country, published before
the year 1783, although the sources of the river St. Croix are very inac-
curately laid down, still it is very uniformly made to terminate in a lake
near the eastern branch of the Penobscot; and a line drawn north from
that termination, upon those maps, will not intersect any of the rivers
which empty themselves into the sea to the eastward of the mouth of the
river St. Croix, except the river St. John. Thisfurnislies an unanswer-
able argument, so far as any fair conclusions can be drawn liom those
maps in proof, not only that the river Scoudiac is the true ancient river
St. Croix, and consequenlh) intended by the treaty of peace under the
name of St. Croix, but that its true source is upon that western branch,
in a lake, near to an eastern branch of thes river Penobscot.

If, then, there were any doubt remaining which is the true source of the
river St. Croix from which the line due north to the highlands is to be
traced, the inconveniences above mentioned would form the strongest ai-
gument against a decision from which they would result, and in lavor of
that by which they will be avoided ; much more so, when the latter de-
cision will correspond with and be supported by so many other incontest-
able proofs and arguments, clearly establishing the river Scoudiac, to the



142 [ Stiv.ite ])oc. No. 171. ]

source of the \\e>tcrn branch, to be the river St. Croix, truly intended
under that name, in the tieaty of peace, and running; a pait of the boundary
therein ilescribed ; and the northwest angle of iVova Scotia, mentioned
in the same treaty, to be Ibrmed by a line drawn due north from that
source to the hii«;hlands described in the treaty.

Whether, therefore, we follow tlie words of the grant to Sir William
Alfxandei', by which we must be at all events concluded, or follow the
main branch of tiie river jetaininf£ llu; s.ime name, or are j^overned by the
uniform decision of geographers and historians of credit upon the subject,,
and the rules and principles of the law of nations for the interpretation of;
treaties, we shall be led to the same place as the source of the river from
which the line due north must be traced to the northwest angle of Nova
Scolia.

Hut even if it had r)ot been known, at the time of the grant to Sir Wil-
liam Alexander, that this river- had two branches, and the grant had been
exjjressed generally, to the furtliest source oV the river St. Croix, still the
main branch, or- that retaining the name of the river at its mouth, must
have been followed to its source, not only to satisfy the words of the grant,
but to give it its intended consliuction and operation.

It clearly apjtears to have been the intention of the grant to give as
large a territory to be erected into the Province of Nova Scotia, as the
liver St. Croix could give by tracing a line due north fr-om its source to
the great river Canada ; and it is expressly provided in the grant, con-
trary to the general rules for the construction of the King's grants, that
if any questions or doubts should thereafter arise upon the interi>retation
or construction of any clause contained in the grant, that they should all
be taken and interpreted in the most extensive sense, and in favor of the
said Sir William Alexander.

Having traced the original boundaries of the Province of Nova Scotia
to the farthest source or spring of the river St. Croix, upon the western
branch thereof, and thereby found the utmost western limits ol the Prov-^
ince, it remains only to discover its utmost northern limits, in order tOr
ascertain the northwest an^le we are in search of.

The Province oi' Nova Scotia, at the time of the treaty in 1783, was,
as has already appeared, bounded to the northward by the southern
boundary of the Province of Quebec, which boundary was established
by the royal proclamation of the 7th October, 1763, and confirmed by
the act of the 14th George 3, c. 83, passed in the same year with the
act of Parliament already cited, by which it is enacted that all (he terri-
toiics, islan(is, and countries, in North America, belonging to the Crown
of (jrcat Britain, bourrded on the south by a lirie from the bay of
Chaleurs, along the highlands which divide the rivers that empty them-
selves into the river St. Lawrence from those which fall into the sea,
to a point in forty-five degrees of northern latitude on the eastern bank
olthe liver Connecticut, iic, be annexed to and made a part and parcel
of thi,' Province of (Quebec.

As, then, at the treaty of peace in 1783, the noiiiiern limit of the
Province of Nova Scolia was " a line along llii' highlands which divide
the rivers that (.inpiy themselves into the river of St. Lawrence, from
those which fall into the sea," it unciuestionably follows, that the north-
west angle of Nova Scotia, at the time of the treaty of peace in 1783,



[ Senate Doc. No. 171. ] 143

was thai angle which was formed by a line drawn due north from the
source of the liver St. Croix to those highlands. If we now compare
this angle w ith the northwest angle of Nova Scotia, described in the
treaty of peace, viz : that angle which is iormcd by a line drawn due
north fiom the source of St. Croix river to the same highlands, can it
be said, with any dcgiee of ])ropiiety, that " the limits and boundaiies of
the Province of Nova Scotia were unknown at the lime of the treaty of
peace in 1783, and that it therefore became necessary to give it a western
boundary by the treaty itsell", in these words, to wit : that angle which is
formed by a line due north from the source of the river St. Croix to the
highlands ?"

Can it be believed, or for a moment imagined, that, in the course of
human events, so exact a coincidence could have happened between
the actual boundaries of the Province of Nova Scoiia and the boundaries
of it described in this treaty, if the latter had not been dictated and regu-
lated by the former?

Can any man hesitate to say he is convinced that the commissioners
at Paris in 1783, in forming the 2d article of the treaty of peace, in which
they have so exactly described this nortlnve.st angle, had reference to,
and were governed by, the boundaries of Nova Scotia as described in the
grant to Sir William Alexander, and the subsequent alteration of the
northern boundary by the erection of the Province of Quebec ?

Will not this conviction become irresistible, when he adverts to the
reservation made to his Majesty in this article of the treaty, "of such
islands as then were, or theretofore had been, within the limits of the
said Province of Nova Scotia, and to the islands included and compre-
hended within those limits, as described in the grant to Sir William
Alexander, some of which might have belonged to the United States, as
lying within the limits of those States, but Ibr the exception of them in
the treaty ?

Let us now compare the western boundaries of the Province of Nova
Scotia, granted to Sii- William Alexander, wiih the corresponding eastern
boundaries of the United States. As the liver St. Croix is not included
in the giant to Sir William Alexander, as stated by the agent of tiie
United States ; and as it was not intended to be included, because, as
has been made to appear, this river St. Croix was an agreed boundary
between the Province of Nova Scotia, erected by this giant, and the
territoi-y of New England, granted to the grand council of Plymouth, it
follows that the line of this grant to Sir William Alexandei' must legally
be construed to run through the Jiiiddle of the river, the rirer not being
assigned inclusively to either territory.

Upon this principle, then, this part of the western boundaries of the
Province of Nova Scotia, in the grant to Sir William Alexander, will be
a north line, across the mouth of the bay of Fundy, to the river com-
monly called by tiie name of the St. Croix, and through the same, to the
farthest source or spring upon the western bianch thereof., including and
con)prehending all islands within six leagues to the westward, northward,
and eastward, and within forty leagues to the southward of any pait ol
the premises described in the grant.

And the corresponding eastern boundary of the United Stales, by
the 2d article of the treaty of peace, is, " aline to be diawn along the



14 4 [Senate "Doc. No. 171. |

middle of the river St. Croix, from its mouth in tlic hay of Fundy, to its



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 18 of 56)