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Maps, plates, cherts, etc., may be filmed et different reduction retios. Those too lerge to be entirely included In one exposure are filmed beginning In the upper left hand comer, left to right and top to bottom, aa many frames as required. Ttte following diagrams illustrate the method: Les certes, planches, tableaux, etc., peuvant Atra filmAs i das taux de rMuction diff Arents. Lorsque le document est trop grand pour Atra raproduit en un seul clichi. 11 est f iimi A partir de i'angie sup4rieur gauche, de geuche A droite, et de haut an lias, en prenant le nombre d'images nAcessaire. Las diagrammes suivar cs illustrent le mAthode. 1 2 3 1 2 3 4 5 6 AWARDS BY THE HON. JOHN HAMILTON GRAY. AB ARBITRATOR OR UMPIRE UNDER Tl RECIPROCITY TREATY, SIGNED AT WASHINGTON, JUNE 5, A. D., 1854. Dated at Saint John, in the Province of New Bruns^vick, APRIL 8, 1858. SAINT JOHN, N. B. PRINTED BY J. & A. McMILLAN, 78, PRINCE WILLIAM STREET. 1898. «,r '•«>. r* •HW .HV By the 3rd Article of the Treaty of 1788 betveon Great Britain and the United States it wa itipulated, " That the people of the United States should continue to eryoy ^. j,^ " unmolested the right to take (inh of every kind on the Grand Bank, and on all the other ih« Law of " Banks of Ncwfoundluiid, also in the Gulf of St. Lawrence, and ut all otherplaces in the {^'jj"'" "* "sea, wliere the inliabitnnts of both countries used at any time theretofore to fish. That "the inhabitants of the United States hIuiH have liberty to take fish of every kind on " such part of the coast of Newfoundland as Britiidi fishermen shall use (but not to cure or " dry thcni on the inland) and also on the coasts, bays and creeks of nil other of Hif " Britannic Majesty's doniinionn in America. And that the American fishermen shall "have liberty to dry and cure fisli in any of the nnsetilcd bays, harbours and creeks in "Neva Scotia, — Magdalen Islands and Labrador, so long as the same shall remain "unsettled: but so soon as the same or either of them shall bo settled, it shall not " bo lawful for the said iisbormcn to dry or cure fish at such settlement, without a "previous agreement i'or that pur|i()se, with the inhabitants, proprietors, or possessors " of the ground." The AVar of 181-4 between Great Britain and the United States, wai held by the former to have abrogated this stipulation, aiul the declaration of peace, and Treaty of Ghent, which subsciiuently followed were entirely silent on the point. This silence was intentional — during the negotiations the question had been expressly raised and the claim of the United States to the continued enjoyment of the rights secured by that stipulation denied. By the Convention of the 20th of October, 1818, the privilege ;^„j„„n{^ of the Fisheries within certain limits was again conceded to the United States — and putt, ISSS, |i, the United States by that convention "renounced any lil)crty bclbre enjoyed or claimed " by them or their inhabitants to take, dry or euro fish on or within three marine miles "of any of the coasts, bays, creeks, or harbours of any of the British dominions of " America, not included within that part of the southern coast of Newfoundland extend- " ing from Cape Kay to tho Ramcau Islands ; on the western and northern coast of "Newfoundland, from Cape Kay to the Quii-pen Islands — on the shores of the Magda- "len Islands — and also on the coasts, bays, harboui-s and creeks from Mount Jolly on "the South of Labrador to and through the Straits of Bellisle, and thence northerly "along tho coast." This concession was to bo without prejudice to any of tho exclu- sive rights of the Hudson Bay Company, and tho American fishermen were also to have the liberty for ever to dry and cure fish in any of the unsettled Bays, Harbours and Creeks of the Southern part of the Coast of Newfoundland therein described, and o^ the Coast of Labrador, but so soon as the same or any portion thereof should be settled, it shoulci not be lawful for tho said Fishermen to dry or cure fish at such portion so settled without previous agreement for such purpose with tho Inhabitants, proprietors, or possessors of the ground; and was further subject to a proviso that the American Fishermen should be permitted to enter the Bays and Harbours in His Britannic Majesty's dominions in America, not included within those limits, " for the purpose "of shelter, and of repairing damages therein, of purchasing wood and of obtaining " water, and for no other pui-posc whatever. But they should be under such restrictions „ a at "as might be necessary to prevent their taking, drying, or curing fish therein, or in any isis. "other manner whatever abusing tho privileges thereby reserved to them." A dilFerence arose between tho two countries. Great Britain contending that the prescribed limits of " three marine miles," the line of exclusion, should be meaaured firom headland to headland, while the United States Government contended it should be TrulT n( Wiuliitiiiton, Junes, A. D., 1854. nioasiircil from the intorioruf the Luvh and the BhiiiurtiticH of tlic roBBtn. The mutual on< forcemoiit of those poHitions U'd to further miMundorHtuiulingB hetwcoii the two countrii'd. To do ftway with tlic ouuhuh of thoNO iniHundorHttiiulingH and to remove all pi'oundH of futuro iiubroilniont, by the Troiity of Wu. liinj^ton, June 6th, 1864, it wm*. Iiy Artiilo tho Irt njjivi'd: "That in addition to tlic liberty Hocured to the United "States Fishornuii by tho ab>ve mentioned Convention of October 20th, 1818, of " talking, curing, nnd drying fisli on certain coastnof the Ih-itish North American Colo- " nlos, therein dcHncd, — the inhabitants of the United States shall have in common "with the subjects of Her JJrit4iiinic Mnjesty, the liberty to take fish of every kind " (except shell lisb) on the sou coasts and shores, and in the Days, Harbours and Croekf "of Canada, New nrniiswick, Nova Seotia, I'rince Etlward Island, and of tho several " Islands thereunto adjacent, without being restricted to any distance from the shore ; " with permission to land upon tho coasts and shores of those colonies and the Islands " thereof, ane are as follows ; HE CORD No. 1. "We, the uiidcrsigned Commissioners respectively, on the part of Groat flklliin " and tho United States, under tho Reciprocity Treaty concluded and signed atWuhiag- "ton, on tho 6th day of Juno, A. D., 1854, having met at Halifax, in the ProvinM of "Nova Scotia on tho 27th day of August, A. D., 1855, thence proceeded to sea in the "British Brigantine " Halifax," and passing through tho Strait of Canso, first examined " tho River Buctoucho in tho Province of New Brunswick. " A survey was made of tho mouth of tho said River Buctouche by the Surveyora " attached to tho Commission, George H. Perlcy, on tho part of Great Britain, and lUch- "firdD. Cutta on the part of the United Stotes, a plan of which marked No. 1, and signed " by tho Commiseiouors respectively will be found in Record Book, No 2. "We, the Commissioners aro unable to agree upon aline defining the moutli of " said River." "Her M^esty's Commissioner claims that a line from Glover's Point to the "Southern extremity of the Sand Bar (marked in rod on tho aforesaid plan No. 1) desig- " nates the mouth of the said River Buctoucho ; tho United States Commissioner cMmB "that a line from Chapel Point bearing South 4° West (magnetic), (marked in blue on "tho aforesaid plan No. 1) designates tho mouth of said River, and of this disagreement record is here made accordingly." "Dated at Buctouche in the Province of New Brunswick, this 19th day of Sep- tember, A. D., 1866." {Siffiud.) "M. H. PEKLEY, H. M. Oommiaaimer. (Sifftud.) "G. G. CUSHMAN, U.S. OmmisaUmer." RECORD, No. 2. "We, the nndorsignod Commissioners respectively on the part of Great Britain and the United States, under the Reciprocity Treaty, concluded and signed at Washington, on tlie 5th day of June, A. D. 1864, hitving examined the River Miramichi, in the Prov- ince of New Brunswick, are unable to agree upon a lino defining the mouth of said River. "Her Mjyesty's Commissioner claims that a line connecting Fox and Portage Islands (marked in rod— plan No. 2, Record Book No. 2) designates the mouth of the Miramichi Rivoi'; the United States Coniniissioner claims that a line from Spit Point to Moody Point (marked in blue Plan No. 2, Record Book No. 2) designates the mouth of said River, and of this disagreement record is here made accordingly. "Dated at Chatham on the Miramichi in the Province of NewBrunawiok, ou ttiUf 27tli da; of September, A. D., 1855. {Signed.) "M. H. PERLEY, JT. M. OnmitaUmtr. l^gtud.) "G. G. CU8HMAN, U. 8. CmmHaimef." UK CO II I). No. !). '• \\'i\ t\\v uii(lfrnij;iic(l ComnuHMionoM iiiidor tlio Uppipiwity Treaty hctwotit (Jivat llntiiiii uiul tlio ITnitod HtiitoM, Higtiptl iit WiiHliinjfton on tho r»tli duy of Juno, • A. I)., 18">4, liuviii^' c'xumiiiod tlio Klliot rivor oinjityin/? into IlillHhoroiiffli Hay, on tlio • fi.iwt of I'rint'i' Kdwurd IhIiukI, ono o^' tlio Uritinh Nortli AinoricHii ColoiiicH, do htTohy •iijjicc iind doi'ido tlmt ii line i)onrin>^ Nortli Sri" VlnM. (nia>j;no(l ConiiiiisHioiuTH iiiulor tho Rociprocity Tiooty hetwcon Oiviit '• Rritiiiii anil the l^iiitod StiitcH, Hij;iii'tl iit "WiiMliiii^toii on tlii' r>lh thxy «t'.lnn«', .\. !»., " IM54, hiiving cxumiiu'd Uio Moiitajfiio ll'wi'V, eiuiityiiij; into Canliffiin Itu,v on tli<' ("oiihI "ot'l'riufc Ktlwnrd ImIuiuI, one ol'tlio IlritiHli North Aniorifiiii rolonion, ilolioroby u^rop " unil (K'l'uli-, that a lini- bi'arinjj North 7-' Eawt (nmjfnotic,) drawn I'roin (Iravc I'oint to " Cardigan J'o'int m xliown on tho I'lan No. K UiU'ord Itook No. 'J, hIuiII nnirk the moutli " or outer limit of the Huid Monta>{ue River, and that all the watertt within or to tho wost- " ward of Hinh line nhall he reserved and exelinled from the eoinnion right of li«hing "therein under the lirHt and Heetnid artieles of the Treaty aforenaiil. "llerMujeHtyn CoinniiHttioner, in the ahove lineeluinm tlie wnn;' an defining tho "joint Miouth of tiie Montuj^uu and Urui'enell RiverH. "Tlie United StutoB ComniiBHioner ugreoH to tho above lino iw marking tho "mouth of tlie Montague only, not reeognizing or neknowledging any other rivor. " Dated tit Rangor, in tho State of Maine, United BtuteH, tluH twenty-Hovonth day " Soptcinbcr, A. D,, IBAG. (S^jnetC) "M. 11, PKRLKY, //. if. Commissioner. {Signed) "U. G. OUHHMAN, U. S. Commiaaioner." IIECORD, No. I 1. "Wo, Iho uiuloivi^iicd (JoinnuHHionorH uiuler the Ilcciprocity Trouty iMitwi-cn "OfPnt Urita'm mid tlio Unitcil HtutoM wij^iud u( Wiwliiii^toii on tlie Atli diiy nl' .huu, "A. I)., 1H')4, liuviiijt cxiiniiin'il tlio (^otiHtu of I'riix'o Kdwurd [Mliviid, oiifs of the liritiHh "North Anu'rii-aii t'olonu's, uro uiiublo to a>'. Comm,3siomr.- fMM..rk.t I'i- itrllv'n Rrptt!, AnRi-lon'ridt' \\ atem, V4. V.fWf vs. Ti- tii--. Kerr's Ro- i'lTlS, Nl'W link. Ciirti. It will thus 1)0 seen that the ditloroncos liotwccn the CommindioiierH rcsolvo thern- .Mi'ivort into two (livinio!iti: — Ist. ^Vlii'tluT the Iweiit.v-four placcn luiiccd in I'rinco K<1- wai'il's I«linul, or iiny of tlicin, ar, is conti'iidi'il by II. \(. (^onnniHsioncr, are to be dcein<' Nfiraniiehi and Muetouehe in .Vew Jlrunswiek, heiiifj admitted to he IJivers, hy wliut lini'sare the nionchs ol' those Uivers rcsjieetively to he determined? In coming to any eoneliision on these iioints, it is nnipieHtionahly the duty of tlu' iiinjiire, to look at the spirit and onjeet of the Treaty. The eause.s of ditHeuIty if was iiitended to remove — the modi' of removal proposed. The elasses of Kish songht for in tlie deep sea Fisheries strike within "three marine miles" from the shore, the "Hays" within the headlands are their jdaees of re.sori, bnt unlike the salmon or I lie sl':id, they do eot ascend tin! Jtivers, or j)articnl:irly seek their er.tranees. To prosecute the Mackerel Fishery with success the right of lishing on the "sea coast and shores" within " three marine miles," ami within tlie "Bays" with the privilege of Innding for drying nets and curing iish was absolutely necessary; the convenieiu-e of a "Harbour," and the right of tishing iherein, desira- ble. A " ereek," which Webster and .Maunders both define to he aeeonling to i\:iglish usage and etymology, "a snuill inlet, bay or cove, a recess in the shore of the Bea, or of a Hirer," and which though "in some of the American States meaning a small River, Webster says is contrary to English usage, ami not justilled by etymology," would also in many instances atlord aei-omnnxlation. A right to the " sea coast and the shores" — to the " Ilnrboiu's" and the "Creeks," w.iuld thus afford to the fisherman all that lie W(.uld n quire, and leave to the Rivers rising liir in the interior of the respe<-t- ive Countries, ami flowing by the homes ind the hearths of a ditterent nation, the sacred character which woidlains of Holland, ll is not the rise or fall of tide or the fact that there may be little, if any water, when thi' tide is out. The kStour and Orwell in England are dry at low water, yet they have 'Iways been recogni- zed and treated as Rivers. The Petiicodiac, in Xew Rrunswick, the Avon in Xova Seotia, owe their width, their waters, their utility entirely to the Ih.y of Fundy ; yet their claim to be el.i.ssed among Rivers has never been doubted. The permanent or extra- ordinary extent of the stream, in eases where not at all, or but little influenced hy the tides, is no criterion. The periodical thaws and freshets of spring and autumn in America make rivers of vast magnitude, usel'ul for a thousand eommereial purpose.s, in jilaec-s, where, when those thaws and t'reshets have jiaasod away, their drj- beds are visible for weeks. Tiie term "flottabie," apjilied to such streams is well recognised in the Courts of the United States, classing them among rivers, and clothing the inhabitauta upon thoir banks with tho rights of riparian proprietors and the public at largo with thr |iriviicgo of aceoiumodation. An impoilant tost muj bo said to be tho cxiHtenco or non-existonco of bars at the pjoutliH of waters or streanis running into tho sea. Tlio existonco of such bars iiei'<>s8uriiy pre-supposos a oonflict of antagonistic powers. An interior water forcing its way out, yet not of suffit-iont strength to plougli a direct paH8.;ge tlirougli tho -iinds acouniulated by the inward rolling of tho sea, would necessarily diverge and thus li'iix o a l)ar in front of its passage, just at that distance where tho force of its direct iM'tion would be expended. 8onio rivera such as the Mississippi and the Nile make deltas and run into tho sea. In this case the extreme land would give a natural out- let. Others again nin straight into the sea without any delta — and without any estu- ary. In these eases the bar at the moutli wor'd give a natural limit, but tho bar at the moutli is eipuilly characteristic of its being a river. Tluire are cases ai^uin where tho estuar\ gradually widening into the sea, leaves neither bar nor delta to nuuk its outlet, or determine its character. In such cases, for the latter 'eatymay be abused, can liiive no v.eight. There will doubtless be li>uud in both countries men who will disregard its solemn obligafioiis, and take advaii- tnge of its concessions to defraud erity of two Empires. Sueb dithculties ean bo obviated if necessary, by national or local legislation. The Uivers of Prince Edward Island, whether one or ono hundred in number, must, as to length, necessarily be small. The island is in no part much over thirty miles in width, and the streams run tlirougli it more or less transversly, not longitudin- ally. Capt., (now Ailmind,) Ihiyfield, the accomplished hydrograiilier, and surveyor of the gulf of St. Lawrence thus describes it. ''rrinee Edwanl Island separated from the southern shore of tho gulf of tlio St. •• Lawrence liy Xorthuniberland Strait, is ono hundred and two miles long, and in one " [)art about thirty miles broad ; but the breadth is rendered extremely irregular by large '• Hays, inlets, and rivei-s, or rather sea creeks, which penetrate tho Island, so that no "part of it is distant more than seven or eight miles from navigable water. Its shajio " is an irregular cresecnt, concave towards the Gulf, tho northern shore forming a great ' ' Bay, ninety-one miles wide and twent^'-two miles tleep, out of which the set of the tides ''and the heavy sea render it very ditHciilt to extricate a ship, when caught in tho N.E. '■gales which frevpiently occur towards the fall of the year, occasionally blowing with "great strength and duration, a>)d at such times proving fatal to nnmy vessels." This passage has been partic\darly called to my attention in a veiy ela'^orato and able statement of his views, placed before mo by tho United States Comniissionor, who further ailds "that Sir Charles A. Fitzroy, tho Lieut. Governor of th'» Island of "Prince Edward, in an otlicial eonimunication to tho British Government, calls the "Island Rivers 'strictly speaking, narrow arms of the sea,'" and that "Lord Glenelg, "in his reply alludes ti> them as ' inlets of the sea.' " On examining the Records refer- red to by the Commissioner, I tlnd the first to bo a dispatch (in Jan. 1858,) from Sir v;has. Fitzroy, to the C'olonial Secretary, Lord Glenelg, with reference to the regerves for Fisheries, contained in the orginal grants in the island, arising out of tho order in Angilon'l'hli' WiiterK, 711. Sailinp Pirrr- tiufiK Tor the (■ulfnnil Riv- er Siiint T.aw- rcncr. l*Art .1. p. 9S. Journals nf tlie I.egislH- tire Council of Prince Kd. lalanc), A. D. 183». AppcM- Jix D. Gouncil, nnder which those grants woro issned, and which was as follows, " That in "order to promote and encounigo tirn Fishing, for which many parts of the Island are "conveniently situated, there bo a clause in the grants of each Township that abuts upon "the seu shore, containing a reservation of liberty to all His Miyesty's subjects in gen- "eral. of carrj-ing on a free fishery on the coasts of the said Townships, and of erecting "stages and other necessary Buildings, for the said Fishery, within the distance of fi^'e "hundred feet from high water mark." Ho then states ho enclosed for the infoi-niation of the Qovernment "a Return " showing the several reserves for this purpose contained in tho different Townships, " from which it will appear that tlio reservation as contemplated in the order in Coun- "cil has been strictly followed in only twelve Townships. In thirty-two Townships "the r servation is as follows, 'iind further saving and reserving for the disposal of His "Miyosty, his heira and succi'ssoi-s, five hundred feet front liigh water mark on the " coast of the tract of land hereby granted to erect stages and other accessary buildings "for carrying on the Fishery,' of the remaining twenty-three Townships, eighteen con- "tain no Fishery Reservation; and of five, no grants whatever, arc on record." And then reninrks, " I3y reference to a plan of the Island annexed to tlie Return, your Lord- "ship will perceive that several of tlie Townships which do contain reservations, abut "upon Rivers only, or more strictly speaking, narrow arms of the sea." Lord Glenolg, in his reply, (May, 1838,) says "It appears to nie that tlie rcsor- " vation made of lands adjacent to the sea coast, or to the shores of inlets from the sea, "for the pni-poae of fishing, so fur as the right has been reserved to the tjueen's sub- "jocts collectivelj', constitute a property, over which the power of the Crown is exceed- "ingly questionable."' It does not appear to mc that these passages bear the coastruction put upon them, or wei-e inteudod to desigiiuto the Island rivers generally, or in any way determine their character. Is it not rather a mere qualified mode of expressica used at the time without any definite object, or perhaps if any, to avoid being concluded by either term '! But if the use of a term "hj' one or two of the local authorities is to be deemed of such weight, of how much more weight would be the continued use by the Legislature for jears of a contrary term. Acts of the Assemblj' vesting rights, imposing penalties, and creating privileges with refiirente to these water.;, under tho name and designation of Rivers, to a series of which I call attention, namely: 10 Geo. IV., c. 11. 1 Vic. c. 19. ' 7 Vic. c. 3, 2 Wm. IV., c. 2 & 13. 2 Vic. c. 10, 8 Vic. c. 20, 8 Wm. rV., c. 8, & 10, 'i Vic. c. 12. 12 Vic. c. 18, c. 35 & 22. 4 Vic. c, 16. 16 Vic. c, 34. 4 Vic. c. 18. 16 Vic. c. 28. . 5 Vic. c. 9. Also to the various reports of the Annual Appropriations and Expenditures, to be found in the Journals of the Legislature. On an examination of theue Acts, it will be found that the Legislature of the Island has by a continued series of enactments extending over a period of tl.irty years, legislated upon the "Rivoi-s," "Bays," "Creeks," "Harbours and "lesser streams" of the Island, recognizing their existence and difference, — appropriating the local revenues tf. meir improvenient — establishing rights, and creating private iiiterests with reference CO them, entireiy inconsistent with their being aught but the internal waters and rivere of the Island, and directly at variance with tho terms and character of legislation, which would have been used had they been considered "arms" or mere "inlets of tho sea." Such acts by the Congress of the United States, or by the respective Legislatures of the several states, on any matter within their jurisdiction, would be regarded as con- clusive of the character of the subject legislated upon. The Legislation of Prince Edward Island in pari materia is entitled to the same consideration. The British Qov- mcnt at the present day neither legislates away nor interferes with the local administra- 5 Wm. rV., c. 3 & 7. 6 Wm. IV., c. 2.5, V Wm. IV., c. 23, SI tion of the aflbira of the Oolonios. TMh very treaty is dependent upon tho action of the Provincial Parliaments, and based upon tliu preaorvation of private riglit«. Can It be oontoudod, or shitll it be admitted, that this Treaty abrogates the LugiHlntion of years, ignores tho Laws of tho lahmd, and by implication annuls riglits and piivilogos the most sacred a Colony can possess ? Certainly not. If it bo dcHiruble, from the peculiar conformation of this Island and its waters, that tho latter should be viewed in a light ditlbront from that in which they have been hitherto regainlcd, tho Local Legisluturo can so determine. In a very important decision in tho Supreme Court of Iowa, reported in the American Law llcgistcr, issued at Philadelphia, in August, 1857, — it was dotennined " that tho real test of navigability in the United States, was ascertained by xi.se or by "public ad of (U'chiralion, and that the Aet« and Doclaratlons of the ITnited States declare " and Constitute the Mississippi Kiver a publi<^ highway in tho highest and broadest '•intendment possible." Shall not therefore tho public Acta and Peelarations of the Legislature of Prince Edward Island bo consideivd of sonio authority in determining what are the Kivcrs of that Island? — and particularly when those Acts and Declarations w«re made lon Brunswick, this 8th day of April, A. Z>., 1853. JOHN HAMILTOJf GRAY. No. 4.~PINNETTE. I, the undersigned, Arbitrator or Umpire, under the Reciprocity Treaty, oon- fludod ond signed at "Washington on the 6tli day of June, A. D., 1854, having proceeded to and examined the Pinnette in Prince Edward Island, concerning which a difference of opinion had arisen between Her Britannic Miyesty'a Oommiasioner, and the Com- misBiouer of the United States, as disclosed in Record No. 11 of their proceedings, am of opinion that the Pinnette is a tidal Basin or Harbour, and as such Arbitrator or Umpire I decide that it is not a River. Dated at Saint John, in the Province of New- 1 Brunswick, this 8th day of April, A. D., 1868. / JOHN HAMILTON GRAY. * M i^ No. 5.— MURRAY. ft I, the undersigned, Arbitrator or Umpire, under the Reciprocity Treaty, con- cluded and signed at Washington on the 5tli day of June, A. D., 1854, having proceed- ed to and examined the Murray, in Prince Edward Island, concerning which a ditferenc*! of opinion had arisen between Her Britannic Majesty's Commissioner, and the Com- missioner of the United States, as disclosed in Kecord No. 11 of their prucocdings, am of opinion that the Murray is entitled to be considered a Kiver. The Murray is a Kiver, and entitled to be so considered in view of its abundant supply of fresh water, its formation, and deep and navigable channel. By reference to the original n;rant8 in 1769, of lots 63 and 64, bordering on the " Murray,"it will be seen, the Crown at that early day drew the distinction between the River, the Harbour, and the Sea Coast, and hour is i^ese Lots by the Harbour and River, and by the Sea Coast respectively. It is a) o recognised in the Public Acts of appropriation of the Island under that designation. As such Arbitrator or Umpire, I decide that the Murray is a River. Dated at Saint John, in the Province of New- 1 BruDBwick, this 8tb day of April, A. D., 1858. j JOHN HAMILTON QRAY. 19 No. 6.— CARDIGAN. I, the underaignod, Arbitrator, or Umpire, under the Reciprocity Treaty, con- cluded and signed at Washington on the 6tli day of Juno, A. D., 1854, having pro- cooded to, and examined the Cardigan in Prince Edward Island, concerning which a difference of opinion had arisen between Her Britannic M^esty's Comniissiouer, and the Commissioner of the United States, as disclosed in Record No. 11 of their proceed- ings, am of opinion That the Cardigan is entitled to be considered a River. It is so described by Bayfield. It bears a close resemblance to the Montague and the Elliot, which have been declared by both Commissioners, as appears by Re- cords Nos. 9 atid 10, to be Rivers. It is so designated by the Crown in the grant of Lot 84, in 1769, and repeatedly recognised as such by the Legislature. As such Arbitrator or Umpire, I decide the Cardigan is a River. Dated at Saint John, in the Province of New- 1 Brunswick, this 8tli day of April, A. D., 1858. / JOHN HAMILTON GRAY. No.7.— BOUQHTON. Btyficld ISS. I, the undorsigncd, Arbitrator, or Umpire, under tho Reciprocity Treaty con- cluded aiici signed at Washington on tho 5th day of June, A. D., 1854, having pro- ceeded to and examined the Houghton in Prince K 5tli day of Juno, A. D., 1854, having proceed- ed to and examined the Tryon in Prince Edward Island, concerning which a difference of opinion liad arisen between Her Britjinnic Miyesty's Comnussioner, and the Coni- niis.^ioner of the Uu'ted States, as dincloscd in Record No. 11 of their proceedings, am of opinion that the Tryon is entitled to be considered a River. As such Arbitrator or Umpire, I decide the Tryon to be a River. Dated at Saint John, in tut Province of New- ) Brunswick, this 8th day of April, A. D., 1858. / JOHN HAMHiTON GRAY. No. 12.— CRAPAUD. I, tho undersigned, Arbitrator or Umpire, under the Reciprocity Treaty, .ion- I'luded and signed at Washington on the 5th day of June, A. D., 1854, having proceeded to and examined the Crapaud in Prince Edward Island, concerning which a difference of opinion liad arisen between Her Britannic Miyesty's Commissioner, and the Oom- missioner of the United States, as disclosed in Record TSo. 11 of their proceedings, am uf opinion that the Crapaud is not a River. As such Arbitrator or Umpire I decide the Crapaud not to be a River. Dated at Saint John, in tho Province of Now- \ Brunswick, this 8th day of April, A. D., 1858. / JOHN HAMILTON GRAY. M No. 13.— WINTER. I, tho undersigned, Arbitrator, or Umpire, under the Reciprocity Treaty, con- cluded and signed at "Washingtou on tho 5th day of June, A. D., 1854, having pro- ceeded to, and examined tho Winter in Prince Edward Island, concerning which a dift'erenee of opinion luvd arisen between Her Britannic Majesty's Commissioner, anrl the (Jommissioner of the United States, as disclosed in Record No. 11 of their proceed- ings, am of opinion That tho Winter is entitled to bo considered a River. Apart from its rise in tho interior and its abundant fresh water, its channel through Bedford Bay, (as it is called) is marked and distinct — showing a continuous flow or cun-ent of water from tlic interior towards the sea, a channel bounded by shoals, and proving by its deflected course that the breach in the sands on the sea-shorn fornung the entrance to the so-called Bedford Bay, has been made by the water seeking an outlet for itself, not from the sea making a passage in. In tivct if there were nrt Uiver or stream in the interior of suflicient strength to make the outlet and keep it open, the water of tlie sea would only make the embankment more solid, and there would be no bay or harbour at all. As such Arbitrator or Umpire, I decide the Winter to bo a Rivor. Dated at Saint John, in the Province of New- \ Brunswick, this 8th day of April, A. D., 1858. J JOHN HAMILTON GRAY. No. 14.— HUNTER. I, the nndereigned, Arbitrator, or Uinpiro, under the Reciprooitj- Treaty con- olndod und signed at Washington on the 5th day of June, A. D., 1 ,A, having pro- i-oedod to and examined the Hunter in Prince Edward Island, concerring which a dift'erenoe of opinion had arisen between Her Britannic Majesty's Commissioner, and tlie Commissioner of the United States, as disclosed in Seoord No. 11, of their pro- ceedings, am of opinion that the Hunter is entitled to be considered a River. As such Arbitrator or Umpire, I decide that the Hunter is a River. Duteil at Saint John, in the Province of New- \ Brunswick, this 8th day of April, A. D., 1858. j JOHN HAMILTON GRAY. No. 16.— STANLEY. I, the undersigned, Arbitrator or Umpire, under the Reciprocity Treatj', con- cluded and signed at Washington on the 6th day of June, A.D., 1864, having proceed- ed to and examined the Stanley in Prince Edward Ishmd, conceniing which a difference of opinion had aiuen between Her Britannic Majesty's Commissioner, and the Com- missioner of the TTnited States, at. disclosed in Record No. 11 of their proceedings, am of opinion that the Stanley is entitled to be considered a 'Mver. The Stanley is a full deep stream, having, if the expression may be used, two or three heads, ond several affluents, and is surrounded from its sources to its outlet, by a succession of hills of rapid elevation and descent converging in many different parts towards the River, and affording by their slopes and the courses at their base numerous feeders. Its large tributaries, the Trout and Old Mill Rivers, help to swell its volume. It is described as one of the Boundaries of Lot 21 in the ancient grant of 1769, and recognized by the Legislature under the designation of Stanley River. As such Arbitrator or Umpire, I decide the Stanley to be a River. Dated at Saint John, in the Province of New- Brunswick, this 8th day of April, A. D., 1858. JOHN HAMILTON GRAY. Ko. 16.— ELLIS. L tlie uadenigned, Arbitrator or Umpire, under the Reciprocity Treaty, con- cluded and signed at Waahingtou on the 6th day of June, A. D., 1854, having proire, I decide tho Ilaldiman to bo a River. Dated at Saint John, in tho Province of New- Brunswick, this 8th day of April, A. D., 1868. JOHN HAMILTON GRAY. MJJiJi_ No. 24.— SABLE. 1, the untlcrHignod, Arbitrator, or Umpire, under the Reciprocity Treaty ron- oluded and t'lgnvd at WttHliington on the f)th day of June, A. D., ISM, l-iving pro- looded to and examined tlio Saldo in Trince Kdward Inland, concerning whitli a difTerenco of opinion had ariacn between Her Britannic Miyenty's CommiRsioner, and the CominiHuionor of the United States, as diselofied in Record No. 11, of tJieir pro- ceedings, am of opinion that tlie Sable Ih not entitled to be contiidered a River. As such Arbitrator or Umpire, I decide that the Sable is not a River. Dated at Saint .John, in the Province of Now- ) Hruuswick, thi* 8th day of April, A. D., 1858. / JOHN HAMILTON OUAA'. T \RT SECOND. T ciiino now to tlio ! inoutha ot'thoHO Uivcrs? THE MrilAMICin. 1, the undewijriiid, Arbitrator or Uiuiiin- iiiidor the Reciprocity Treaty, conclu- ded and HJiriied lit Wasliiniftoii on the r)tli day of dune, 1854, Imvo proceeded to and examined tiie mouth of the Miramii iii, in the I'roviiu'e of New Mruuswiek, eoiicerning which ii dirt'ereiice of opinion hud urineu between Her Uritunnic Majenty'rt Coniinissioncr and tho Commissioner of tlie United States, as disclosed in Record No. 2 of their ]irocccdinp8. With rcfcronoo to the Miramichi, it will bo seen by Reco'-d No. 2 — "Her '•Majesty's ComnuNsioncr claims that a line connecting Fo.x and Portage Islands "(marked in red. plan No. 2, Record Hook No. 2,) designates the mouth of tho Miramichi " River. The ' 'nited States Commissioner claims that a line from Spit Point to Moody '•Point (marked iu blue, plan No. 2, Record Book No. 2,) designates the mouth of "said River." By the Tre.ity it is provided that tlie "above meiitioued liberty applies solely to '•the sea tishery, and that the salmon and shad tLshcries, and all tisheries in rivers and •'the mouths of rivers are reserved excl.isivcly" &e., ite. The ])receeding portion of Article 1st, gives tlie right to fish "on tho sea coaRtd "ami shores, and in the Hays, Harbours and C.'reoks." The inner Hay of the Miramichi and the Harbour of Hiictouclic, arc, among other grounils claimcil as e.nning within the detiuition of ••Hays and Harbours" and it has i)eeii urged tliat the clause just referred to, is conclusive in favor of that claim, wliether -luh J^ay or Harbour, does or docs not constitute the mouth of a River, It is therefore necessary betbre deciding which of the lines above designated as the mouth of the Mirami«-lii is the correct one; to dispose of this preliminary (piestion, namely — Does the mouth of a River forfeit its exclusive character under this Treaty bctuiuse it may constitute a Ray or Harbour? Is the restriction imposed, limited to particular fsh or locality '! The spirit with which tliis Treaty wa« made, and the ol)ject it lias in view ilcmaiid for it the most liberal construction, but ciuisistently wirli the most liberal construction, there are many wise and Judi<''ous rca>ons Avhy the exception shouhl be made. The joint or common Fishery in those places where the forbidden tish resort. Would be a jirolitic cause of dispute. The very fact that after the fo"biddeu fish arc named, there .«liould follow the signiticant exi>ression that all tisheries in those [daces, should be n-served, is conclusive as to the idea, predominant in the minds c.f the frainers of the Treaty, — they waiitcil peace; — they would not put the Fishermen of the two nations together, on the same ground, where they would have uneipial right«. Consid- erations fif a national, administrative, or of a fiscal character, may have determined them to exclude the entrances of the great thoroughfares into the respective countries from a common possession. There arc large and magniticent bays and harbours, un- /•onnected with Uivers; tliere are bays anil harbours dependent upon and formed by the inoutiis of {{ivers. Tho terms are not indicative of locality. Hays and harbours may be found liir up in tlie interior of a Counti-j- — in lakes or in rivers; and on the se.i-board. The -mouths of Rivers" are found only in one locality, namelj-, in that |iart of the River by which its waters arc discharged into the sea or ocean, or into a lake, and that part of the River is by the express language of this Treaty excluded. Is the use of a term which may be applicable to many places to supei-sede tliat which can only be applied to a particular place, when the latter is pointedly f" nomZ/i" excluded? ' ' . 37 But why should auoh a cuustruotiou be required when the object of the Treaty can be uttainod without it. The cause of the di^culty was not the refusal to permit a common fishery within the mouths of Rivers, but within throe marine miles of the sea coast. That difficulty is entirely removed by the liberty to take fish "on the sea coast and "shores, and in the bays, harbours, and Creeks, without being restricted to any dis- "tance from the shore." The position taken by the Commissioner of the United States, is further pressed upon the ground " That the tornis of a grant are always to bo construed most strongly "against the granting party." The applieatijn of that principle to the present case is not very perceptible. This is rather the carte of two contracting parties exchanging equal advantages, and the contract must bo governed by the ordinary rules of interpre- tation. Vattcl says "In the interpretation of Treaties, compacts and promises, wo v«nei,booki, " onght not to doviatafrom the common use of the language unless wo have very strong "' * *" "reasons for it." And "when we evidently see what is the sense that agrees with tho •• 8. sri. "intention of the contracting parties, it is not allowabki to wrest their words to a con- trary meaning." It is plain that the fraraers of this Treaty intended to exclude the " mouths of Kivore " from a common possession. Ought we by construing the ternis of tho Treaty moat strongly against the nation where the river in dispute may happen to be to " wret r their words tc a contrary meaning ?" I think not. Mr. Andrews, for many years tho United States Consul in New Brunswick and in Canada, a gontlcnian vliose groat researches and untiring energies were materially instrumental in 'jriiigiiig about this Treaty, and to whom tho British Colonies are much indebted for the I)fcnuiit3 they are now deriving and may yet derive from its adoption thus speak!! of the Mirmnichi in his Report to his Governnient in 18.12: — "The cxten- " si vc Iltirbour of Miramichi is formed by the estuary of tho beautiful river of that name, "which is twolmndrcd and tA>onty miles in length. At its entrance into the Gulf this "river is nine miles in width." " Tlieru is a bar at the entrance to the Miramichi, but the river is of such groat size and pours forth such a volume of water, that tho bar offeis no impediment to naviijiitioti : tiioiv being sufficient depth of water on it at all times for ships of six and seven hundred tons, or even more. The tide fiows nearly forty miles np tho Mirami- chi from the Gulf. The river is navigable for vessels of the nirgest class full thirty miles of that distance, there being from five to eight fathoms water in tho Channel ; but schooners and small craft can proceed nearly to the head of the tide. Owing to the size and depth of the Miramichi, ships can load along its banks for miles." In Brook's Gazetteer, an American Work of authority, the width of the Potomac at its entrance into the Chesapeake is given at seven and a half miles. In the same vvork the mouth of the Amazon is given at "one hundi-ed and fifty nine milca broad." In Harper's Gazeteer, (Edition of 185o,) the width of the Severn at its junction with the British Chaii:iel is given at ten miles across. That of the Humber at its mouth, at six or seven miles, and that of the Thames at its junction at the north sea, at the Noro between the Isle of Shoppey and Foulness Point, or between Sheemesa and Southend at fifteen miles across. And tho St. Lawrence in two difibrcnt places in the same work is described as entering "the Gulf of St. Lawrence at Gaspe Point by a mouth one hundred miles wide." And also that "at its mouth, the Gulf from Cape Rosier to Mungan Settlement in Labrador is one hundred and five miles in length." Thus, width is no objection. Tho real entrance to the Miramichi is however but one and a half miles wide. Captsiin Bayfield may, apparently, be cited by both Com- missioners as authority. He suys page 30, 31 and 32 : " Miramichi Bav is nearly fourteen miles wide from the sand-bars oBed in Record No. 1 of thi'ii- proceedings. "With reference to the Buctouche it will be seen by Record No. 1 "Her Miijosty'sConiniissionor claims ihat a line from Glover's Point to the southern " extremity of the Sand Hur, marked in red in the plan No. 1 designates the mouth of " the said River Huetouche. The United States Commissioner claims tliat a lino from "Chapel Point, bearing South 4° West (magnetic) marked in blue on said plan No. 1, "designates moutli of said River." On the subject of this River the United States Commissioner addresses me as follows: "The red lino extending from 'Glover's Point,' to the Point ol the 'Sand " Bar' is the line marked by II. M. Commissioner as designating the mouth of the " River; in that lino I could not concur, because it excluded from the common right of '•fishing the whole of Buctoucho IlarhoM'' in contravention of tho express words of the '•Treaty." " If it had been the duty ai r'" i -"f the Commissioners to indicate the "point which constituted the mouth of th ''our, I should have been disposed to "acquiesce in the point and line thus denotcii; it from the proposition that it marks "the entrance of those Rivers or any one of th(!m into the Sea or Bay or Harbour, and "constitutes their mouth 1 entirely dissent.'' With tho views I have already exprossed that tho mouth of a River does not lose its treaty character because it constitutor; a Harbour, it becomes impoi^tant to determine which is the principal Agent in forming this Harbour, tho River or the Sea? If it is a mere indentation on the Coast, formed by tho Sea. a Creek, a Bay, or Harbour unformed by, and unconnected with any River, those indentations in a Coast, indebted to the Sea mainly for its waters, then plainly it is not intended or entitled to be reserved ; but if on the contrary it is formed by the escape of waters from the interior, by a River seeking its outlet to the deep, shewing by the width and depth of its channel at low water, that it ia not to the sea it owes its formation, then plainly it is the mouth of a River, and intended to be reserved. Captain Bayfield describes the Buctouche as follows p. 58 and 54: " Buctouche RoADs-rEAD, off the entrance of Buctouche River, and in the widest " part of the channel within the outer Imr, is perfectly safe for a vessel with good anchors " and cables ; the ground being a stiff tenacious clay, and the outer bar preventing any " very heavy sea from coming into the anchorage. It is here that vessels, of too great " draft of water to enter the river, lie moored to take in cargoes of lumber. " BucToucHK River enters the sea to the S. E., through the shallow bay wi'hin " the Buctouche sand-bar, as will be seen in the chart. The two white beacons which I "have mentioned, as pointing out the best anchorage in the roadstead, are intended to " lead in over the bar of sand and flat sandstone, in the best water, iiamely, 8 feet at low " water, and 12 feet at high water in ordinary spring tides. But the channel is so nar- " row, intricate, and encumbered with oyster beds, that written directions are as useless " as the assistance of a pilot is absolutely necessary to take a vessel safely into the river. " Within the bar is a wide part of the chainiel in which vessels may ride safely in 2) and " 3 fathoms over mud bottom; but off Giddis Point the channel becomes as difiicuh, " narrow, and shallow as at the bar. It is in its course through he bay Ihat the " Buctouche is so shallow and intricate; higher up its channel being frfi from ohstruc- " lion, and in come places 5 fathoms deep. Having crossed the bar, a vessel may ascend " about 10 mil'^s .\irther, and boats 13 or H miles, to where the tide-water ends." By an cxnniiiiatiou of the Channel we find miles up this River a deep continu- ous Channel, of twelve, titteon, twenty, twenty-four and thirty feet, down to Priest Point, varying from eighteen to twenty-four to Qiddis Point, and thonce to a line drawn ueioss from the Hand Bur to Glover's Point, from seven to twenty, but of greater width. On the outside of tills (.'hannel which is clearly defined, and between the Sand Bar and llic Clmnnol, wu iind mutl Huts with dry patches and Oyster beds, " flats of mud and eel grass, with dry patches at low water;" with depths from Priest Point to the Sand Bar, varying from four to six feet, and from the Channel off Qiddis Point to the Bar, Iroru one foot to three. On tlie other side of the Channel between Priest Point and Giddls Point, wo iiud " flats of mud and weeds with dry patches and Oyster beds." What has given di-pth and breadth to this Channel, — the tide rises in this vicinity about four feet; would that rise create a channel of the average depth above named? Cuu there be any doubt that It is created by the great body of the River water finding \U way to the Sea? Tiie line "from Glover's Point to the Southern extremity of the Hand Bar, marked in red on plan No. 1," is claimed by II. M. Commissioner as the mouth of the lilver, and admitted by the United States Commissioner as the mouth of the Harbour, but If there were no river here, would there be any Harbour at all? I think not, and this line therefore while it constitutes the mouth of the Harbour also e(Mistitutes the mouth of the Kiver, Tliia conclusion is consonant with the conclusion at which the Commissioners themselves arrived, in the cases of the Elliot and Montague Rivers in Prince Edward I liand as shewn by Records Nos. 9 and 10. The Harbours of Charlottetown and Georgetown arc clearly within the lines they have marked and designated as the mouths of those Rivera rcapo