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a view of giving a general idea of the whole transaction, is in the following words :-" There is still a question concerning "the boundary of the two nations in that quarter, and originating also in the Treaty of Peace, but which, PARTAKING OF THE NATURE OF AN OMITTED CASE, can be settled only by negocias "tion and compact. The Treaty supposes the St. Croix to issue IMMEDIATELY into the Bay of Fundy, and of course that there "would be an entire SEA-BOARD boundary, if it may be so express"ed, between the termination of the Southern and the commence"ment of the Eastern boundary of the United States; and it is also "intended that where the Eastern boundary passed through waters "that were navigable, both nations should equally participate in the "Navigation. The question then is how the boundary in the in"termediate space, between where the mouth of the Saint Croix "hath been decided to be and the Bay of Fundy, is to be established "most consistent with the Treaty; in answer to which it may be suggested that the boundary should be a line, passing through one of the passages between the Bay of Fundy and the Bay of "Passamaquoddy; that the West passage being unfit for the pur"pose, having a bar across it which is dry at low water, the next "to it must be taken and the line may be described-BEGINNING IN THE MIDDLE OF THE CHANNEL OF THE RIVER SAINT "CROIX AT ITS MOUTH, THENCE DIRECT TO THE MIDDLE OF "THE CHANNEL BETWEEN PLEASANT-POINT AND DEER"ISLAND, THENCE THROUGH THE MIDDLE OF THE CHANNEL "BETWEEN DEER-ISLAND ON THE EAST AND NORTH, AND "MOOSE-ISLAND AND CAMPO-BELLO-ISLAND ON THE WEST AND SOUTH, AND ROUND THE EASTERN POINT OF CAMPO"BELLO-ISLAND TO THE BAY OF FUNDY."
It may not be improper here to repeat that no doubt was ever entertained, what Islands by the 2d article of the Treaty of Peace belonged to Great-Britain; nor was this any part of the question referred to the decision of the Commissioners under the 5th article of the Treaty of Amity, Commerce and Navigation, it being easy to establish by authentic and unanswerable documents, what Islands at the time of, and before the Treaty of Peace were within the limits of the Province of Nova-Scotia.
The Duke of PORTLAND therefore was justly alarmed to find the right of water-way or navigation described by Judge BENSON, claimed as a right deducible from the Treaty; apprehending that it was intended to deduce therefrom as a Appendix, No. 2.
farther consequence, a right to the Islands in Passamaquoddy Bay, lying on the American side of such a water-way or navi gation.
It is however to be remarked, that Judge BENSON did not extend his ideas to the pretensions advanced in the Claim now before the Court. He barely intimates that it was intended by the Treaty of Peace, that where the Eastern boundary of the United States passed through waters that were navigable, both nations should equally participate in the navigation; and surely a right of passage or navigation can never be construed into a right to stop and trade in that passage in direct violation of the laws of that nation through whose territory the right of passage is claimed. This would be contrary to every principle of good faith established among nations.
Whatever attempt might be made by the State of Massachusetts (which had always discovered the most anxious desire to extend its territory in that quarter) to deduce a right to the Islands on the American side of the passage or waterway, as a consequence of the right of water-way; it is not to be presumed that Judge BENSON had any idea of such consequence, as he well knew the provisions of the Treaty of Peace in this regard; and he also knew from personal acquaintance with the subject, having been upon the spot as a Commissioner, that Campo-Bello Island, by far the most considerable Island on the American side of the water-waydescribed by him, was in fact held in full possession, property and sovereignty, by Great-Britain.
But I apprehend that it may be clearly demonstrated that there is no such omitted case as Judge BENSON supposes, and that there is a complete sea-board boundary established by the Treaty of Peace between the termination of what he calls the Southern and the commencement of the Eastern boundary of the United States.
Mr. LISTON's observation to this effect is very pertinent, namely that with regard to judge BENSON'S question, "the "British Government may be justified in maintaining, that "the question is already finally decided; the boundary has "been fixed by the Commissioners as far as the mouth of the St. "Croix,and that River according to the sense of the Treaty of "Peace, emptied itself immediately into the Bay of Fundy; "for in MITCHELL'S Map, which was before the Ministers "at the time of the Negotiation, and which was therefore "the authority to which it was natural to refer, no such Bay
"as the Bay of Passamaquoddy is laid down, the whole Arm "of the Sea which waters that part of the Coast being com"prehended under the general name of the Bay of Fundy.
In confirmation of Mr. LISTON's reasoning it may be ob served, that the second article of the Treaty of Peace describing the boundaries of the United States, and the declaration of the Commissioners under the 5th article of the Treaty of Amity, Commerce and Navigation, explaining and deciding the only doubt that had arisen in the construction of the 2d article of the Treaty of Peace respecting the boundary, must be considered as forming but one act or instrument, and that the declaration of the Commissioners respecting the identity of the River, the local situation and position of its mouth, and of its source, must have the same operation, meaning and construction, as if the contents of that declaration had originally made a part of the description of the boundaries in the 2d article of the Treaty of Peace, otherwise, the declaration, instead of explaining and deciding the intention of the Treaty of Peace with respect to the doubtful part of the boundary, would operate to the establishment of a new boundary not contemplated by the Treaty of Peace, which was beyond the power of the Commissioners who made that declaration. Accordingly, the fifth article of the Treaty of Amity, Commerce and Navigation, provides that the Commissioners shall by "a declaration under their hands " and seals decide what river is the river St. Croix intended by "the Treaty of Peace; that the said declaration shall contain a description of the said River, and shall particularize the "latitude and longitude of its mouth and of its source. And "both parties agree to consider such decision as final and "conclusive, so as that the same shall never thereafter be "called in question, or made the subject of dispute or difference between them."
It never has been nor can be contended that the river St. Croix has two mouths; one mouth, and one mouth only, is spoken of in both Treaties, and in fact it ceases to be or to retain the form of a River at the place or point where its mouth is by the Commissioners declared to be, and it there empties its waters into a Bay, which is the common recepta cle of the waters of that, with those of the Magaguadavic and several other Rivers emptying into the same Bay.
Considering then the 2d article of the Treaty of Peace, and the declaration of the Commissioners under the 5th