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It is, therefore, necessary before deciding which of the lines above designated as the mouth of the Miramichi, is the correct one, to dispose of this preliminary question, namely:-Does the mouth of a river forfeit its exclusive character, under this Treaty, because it may constitute a bay, or harbour? Is the restriction imposed, limited to particular fish, or locality? The spirit with which this Treaty was made, and the object it has in view, demand for it the most liberal construction; but, consistently with the most liberal construction, there are many wise and judicious reasons why the exception should be made. The joint, or common, fishery in those places where the forbidden fish resort, would be a prolific cause of dispute. The very fact, that after the forbidden fish are named, there should follow the significant expression that all fisheries in those places, should be reserved, is conclusive as to the idea, predominant in the minds of the framers of the Treaty. They wanted peace; they would not put the fishermen of the two nations together, on the same ground, where they would have unequal rights. Considerations of a national, administrative, or fiscal character, may have determined them to exclude the entrances of the great thoroughfares into the respective countries, from a common possession. There are large and magnificent bays, and harbours, unconnected with rivers; there are bays, and harbours, dependent upon, and formed by, the mouths of rivers. The terms are not indicative of locality. Bays, and harbours, may be found far up in the interior of a country; in lakes, or in rivers; and on the sea-board. The "mouths of rivers," are found only in one locality,-namely, in that part of the river by which its waters are 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 supersede that which can only be applied to a particular place, when the latter is pointedly, eo nomine, excluded? But why should such a construction be required, when the object of the Treaty can be attained without it? The cause of the difficulty was, not the refusal to permit a common fishery within the mouths of rivers, but within three 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 distance from the shore."

The position taken by the Commissioner of the United States, is further pressed upon the ground,-"that the terms of a grant are always to be construed most strongly against the granting party." The application of that principle to the present case is not very perceptible. This is rather the case of two contracting parties exchanging equal advantages; and the contract must be governed by the ordinary rules of interpretation. Vattel says, "In the interpretation of Treaties, compacts, and promises, we ought not to deviate from the common use of the language, unless we have very strong reasons for it." And,-" when we evidently see what is the sense that agrees with the intention of the contracting parties, it is not allowable to wrest their words to a contrary meaning." "It is plain. that the framers of this Treaty intended to exclude the "mouths of

Vattel, book 2, c. 17, sec. 271.

rivers," from a common possession. Ought we by construing the terms of the Treaty most strongly against the nation where the river in dispute may happen to be to,-"wrest their words to a contrary meaning?" I think not.

Mr. Andrews, for many years the United States Consul in New Brunswick and in Canada, a gentleman whose great researches and untiring energies were materially instrumental in bringing about this Treaty, and to whom the British Colonies are much indebted for the benefits they are now deriving, and may yet derive, from its adoption, thus speaks of the Miramichi, in his Report to his Government, in 1852:

The extensive harbour of Miramichi is formed by the estuary of the beautiful river of that name, which is two hundred and twenty miles in length. At its entrance into the Gulf, this river is nine miles in width.

There is a bar at the entrance to the Miramichi, but the river is of such great size, and pours forth such a volume of water, that the bar offers no impediment to navigation, there being sufficient depth of water on it, at all times, for ships of six and seven hundred tons, or even more. The tide flows nearly forty miles up the Miramichi, from the Gulf. The river is navigable for vessels of the largest class full thirty miles of that distance, there being from five to eight fathoms of water in the 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.

219 In Brookes' Gazetteer, an American work of authority, the width of the Potomac, at its entrance into the Chesapeake, is

given as seven and a half miles.

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In the same work, the mouth of the Amazon, is given at one hundred and fifty-nine miles broad."

In Harper's Gazetter, (edition of 1855), the width of the Severn, at its junction with the British Channel, 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 with the North Sea, at the Nore, between the Isle of Sheppey and Foulness Point, or between Sheerness and Southend, at fifteen miles across. And the St. Lawrence, in two different places, in the same work, is described as entering "the Gulf of St. Lawrence, at Gaspé 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. The real entrance to the Miramichi is, however, but one and a half miles wide. Captain Bayfield may, apparently, be cited by both Commissioners as authority. He says, pages 30, 31, and 32:

Miramichi Bay is nearly fourteen miles wide from the sand-bars off Point Blackland to Point Escumenac beacou, and six and a half miles deep, from that line across its mouth, to the main entrance of the Miramichi between Portage and Fox Islands. The bay is formed by a semi-circular range of low, sandy islands, between which there are three small passages, and one main, or ship channel, leading into the inner bay, or estuary, of the Miramichi. The Negowac Gully, between the sand-bar of the same name, and a small one to the south-west, is 280 fathoms wide, and three fathoms deep; but a sandy bar of the usual mutable character, lies off it, nearly a mile to the S.S.E., and had about nine feet over it at low water at the time of our survey. Within the gully, a very narrow channel, only fit for boats, or very small craft, leads westward, up the inner bay. The sheal water extends one and a quarter miles off this gully, but there is excellent warning by the lead here, and everywhere in this bay, as will be seen by the chart. Shoals, nearly dry at low water, extend from the Negowac Gully to Portage Island, a distance of one and a

quarter miles to the south-west. Portage Island is four miles long, in a south-west by south direction; narrow, low, and partially wooded with small spruce trees, and bushes. The ship channel, between this island and Fox Island, is one and a half miles wide.

Fox Island, three and three quarters miles long, in a S.S.E. direction, is narrow and partially wooded; like Portage Island, it is formed of parallel ranges of sand hills, which contain imbedded drift timber, and have evidently been thrown up by the sea, in the course of ages. These islands are merely sand-bars on a large scale, and nowhere rise higher than fifty feet above the sea. They are incapable of agricultural cultivation, but yet they abound in plants, and shrubs, suited to such a locality-and in wild fruits, such as the blueberry, strawberry, and raspberry. Wild fowl of various kinds are also plentiful in their season; and so also are salmon, which are taken in nets and weirs, along the beaches outside the island, as well as in the gullies.

The next, and last, of these islands, is Huckleberry Island, which is nearly one and a half miles long, in a south-east direction. Fox Gulley, between Huckleberry and Fox Islands, is about 150 fathoms wide at high water, and from 2 to 2 fathoms deep, but there is a bar outside, with 7 feet at low water. Huckleberry Gulley, between the island of the same name and the mainland, is about 200 fathoms wide; but it is not quite so deep as Fox Gallery. They are both only fit for boats, or very small craft; and the channels leading from them to the westward, up a bay of the main within Huckleberry Island, or across to the French River and village, are narrow and intricate, between flats of sand, mud, and eel-grass, and with only water enough for boats. Six and a quarter miles from the Huckleberry Gulley, along the low shore of the mainland, in an E.S.EE. direction, brings us to the beacon at Point Escumenac, and completes the circuit of the bay.

The Bar of Miramichi commences from the south-east end of Portage Island, and extends across the main entrance, and parallel to Fox Island, nearly six miles in a south-east by south direction. It consists of sand, and has not more than a foot or two of water over it, in some parts, at low spring tides. He also says pp. 37, and 39:

The Inner Bay of Miramichi is of great extent, being about thirteen miles long, from its entrance at Fox Island, to Sheldrake Island (where the river may properly be said to commence), and seven or eight miles wide. The depth of water across the bay is sufficient for the largest vessels that can cross the inner bar, being 2 fathoms at low water, in ordinary spring tides, with muddy bottom.

Sheldrake Island lies off Napan Point, at the distance of rather more than three-quarters of a mile, and bears from Point Cheval, north-west by west one and three quarters of a mile. Shallow water extends far off this island, in every direction, westward to Bartibogue Island, and eastward to Oak Point. It also sweeps round to the south and southeast, so as to leave only a very narrow channel between it, and the shoal, which fills Napan Bay, and trending away to the eastward past Point Cheval, forms the Middle Ground already mentioned. Murdoch Spit, and Murdoch Point, are two sandy points, a third of a mile apart, with a cove between them, and about a mile W.S.W. of Sheldrake Island The entrance of Miramichi River is three-quarters of a mile wide, between these points and Moody Point, which has a small Indian church upon it, and is the east point of entrance of Bartibogue River, a mile north-west by west half west from Sheldrake Island.

220 But a strong, and I may add, a conclusive point, in showing the passage between Fox and Portage Island, to be the main entrance, or mouth of the Miramichi, is the peculiar action of the tides. It is thus described by Bayfield, p. 35:

The stream of the tides is not strong in the open bay, outside the bar of Miramichi. The flood draws in towards the entrance as into a funnel, coming both from the north-east and south-east, alongshore from Tabusintac, as well as from Point Escumenac. It sets fairly through the ship channel, at the rate of about 14 knots, at the Black buoy, increasing to 2, or 24 knots, in strong spring tides between Portage and Fox Islands, where it is strongest. The principal part of the stream continues to flow westward, in the direction of the buoys of the Horse-shoe, although some part of it flows to the northward, between that shoal and Portage Island.

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The effect of this, is thus singularly felt. A boat leaving Neguac to ascend the Miramichi, with the flood tide, is absolutely met by the tide flowing northerly against it, until coming abreast of the Horse-shoe Shoal, or in the line of the main entrance; and a boat at the Horse Shoe Shoal, steering for Neguac, with the ebb-tide making, would have the current against it, though Neguac is on a line, as far sea-ward, as the entrance to the Portage and Fox Islands thus shewing conclusively, that the main inlet, and outlet, of the tidal waters to and from the mouth, or entrance, of the Miramichi, is between Portage and Fox Islands.

As such Arbitrator or Umpire, I decide, that a line connecting Fox and Portage Islands, (marked in red, plan, No. 2, Record Book, No. 2.) designates the mouth of the Miramichi River.

Dated at Saint John, in the Province of New-Brunswick, this 8th day of April, a. D., 1858.

JOHN HAMILTON GRAY.

No. 135.-1860, November 17: Award of Commissioners' as to the River Hudson, in the State of New York, United States.

We, the Undersigned, Commissioners under the Reciprocity Treaty between Great Biitain [Britain] and the United States, signed at Washington, on the 5th day of June, A.D., 1854, having examined the River Hudson, in the State of New York, United States, do hereby agree and decide, that the two following described lines, to wit:The first bearing north, 5° 30′ east, (magnetic,) from the northern end of Sandy Hook to the western extremity of Coney Island; the second bearing south, 33° 45′ east, (magnetic), drawn from Fort Schuyler, on Throg's Neck, to the point on the opposite shore, as shown on Plan, No. 39, Record Book, No. 2, shall mark respectively the southern and eastern mouths, or outer limits, of said river; and that all the waters within, or to the westward of said lines, shall be reserved and excluded from the common right of fishing therein, under the first and second Articles of the Treaty aforesaid.

Dated at the City of Boston, United States, this 17th day of November, A.D. 1860.

(Signed,)
(Signed,)

M. H. PERLEY, H.M. Commissioner.
JOHN HUBBARD, U.S. Commissioner.

No. 136.-1860, November 19: Award of Commissioners as to the River St. Lawrence, in the Province of Canada.

We, the Undersigned, Commissioners under the Reciprocity Treaty between Great Britain and the United States, concluded and signed at Washington, the 5th day of June, A.D., 1854, having examined the river Saint Lawrence, in the Province of Canada, do hereby agree and decide, that a line bearing north, 40° west, (magnetic), connecting Cape Chatte with Point Des Monts, as shown on Plan, No. 40, Record Book, No. 2, shall mark the mouth, or outer limit, of said river; and that all the waters within, or to the westward of said line, shall

be reserved and excluded from the common right of fishing therein, under the first and second Articles of the Treaty aforesaid. Dated at the city of Boston, United States, this 19th day of November, A.D., 1860.

(Signed,)
(Signed,)

M. H. PERLEY, H.M. Commissioner.
JOHN HUBBARD, U.S. Commissioner.

221 No. 137.-1865, January 18: Joint Resolution providing for the Termination of the Reciprocity Treaty of June 5, 1854, between the United States and Great Britain.

[Public Resolution No. 5.]

Whereas it is provided in the Reciprocity Treaty concluded_at Washington, the fifth of June, eighteen hundred and fifty-four, between the United States of the one part, and the United Kingdom of Great Britain and Ireland of the other part, that this Treaty "shall remain in force for ten years from the date at which it may come into operation, and further until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same;" and whereas it appears, by a Proclamation of the President of the United States bearing date sixteenth March, eighteen hundred and fifty-five, that the Treaty came into operation on that day; and whereas, further, it is no longer for the interests of the United States to continue the same in force: therefore

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that notice be given of the termination of the Reciprocity Treaty, according to the provision therein contained for the termination of the same; and the President of the United States is hereby charged with the communication of such notice to the Government of the United Kingdom of Great Britain and Ireland.

Approved, January 18, 1865.

No. 138.-1866, April 12: Letter from Mr. Cardwell, Secretary of State for the Colonies, to the Lords of the Admiralty.

Confidential.

DOWNING STREET, April 12, 1866. MY LORDS, The determination of the Reciprocity Treaty contracted in 1854 between Great Britain and the United States revives the 1st Article of a Convention of the 20th of October, 1818, with various Imperial and Colonial Acts enumerated in the margin, of which the operation had been suspended during the continuance of the Treaty by the Imperial Act 18 & 19 Vict., cap. 3, sec. 1, or otherwise.

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• Imperial, 59 Geo. III, c. 38. Nova Scotian Revised Statutes (3rd Series), c. 94, ss. 1-18. New Brunswick, 16 Vict., c. 69, ss. 1-18. Prince Edward Island, 6 Vict., c. 14, declared to contain the Fishery Regulations by Order in Council of 3rd September, 1844.

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