“ We, the undersigned, Commissioners under the Reciprocity Treaty, between Great Britain and the United States, signed at Washington, on the 5th day of June, A.D. 1854, having examined the Montague River, emptying into Cardigan Bay, on the Coast of Prince Edward Island, one of the British North American Colonies, Do hereby agree and decide, that a line bearing North, 72° East, (magnetic) drawn from Grave Point, to Cardigan Point, as shewn on the Plan No. 7, Record Book No. 2, shall mark the mouth, or outer limit, of the said Montague River ; and that all the waters within, or to the Westward of such line, shall be reserved and excluded from the common right of Fishing therein, under the first and second Articles of the Treaty aforesaid.

“ Her Majesty's Commissioner, in marking the above line, claims the same as defining the joint mouth of the Montague and Brudenell Rivers.

“ The United States Commissioner agrees to the above line, as marking the mouth of the Montague only, not recognizing or acknowledging any other River.

“ Dated at Bangor, in the State of Maine, United States, this 27th day of September, A.D. 1856.

(Signed,) M. H. PERLEY, H.M. Commissioner.
(Signed,) G. G. CUSHMAN, U.S. Commissioner.”

“ We, the undersigned, Commissioners under the Reciprocity Treaty between Great Britain and the United States, signed at Washington on the 5th day of June, A.D. 1854, having examined the Coasts of Prince Edward Island, one of the British North American Colonies, are unable to agree in the following respect :—

“Her Majesty's Commissioner claims that the undermentioned places are Rivers, and that their mouths should be marked and defined under the provisions of the said Treaty :—

“ Dated at Bangor, in the State of Maine, United States, this 27th day of September, A.D. 1856.

(Signed,) “ M. H. PERLEY, H.M. Commissioner.
(Signed,) “ G. G. CUSHMAN, U.S. Commissioner.”

It will thus be seen that the differences between the Commissioners resolve themselves into two divisions :— 1st. Whether the twenty-four places named in Prince Edward Island, or any of them, as is contended by Her Majesty's Commissioner, are to be deemed rivers, and therefore reserved and excluded from the common liberty of the Fishery ? Or whether, as is contended by the United States Commissioner, these places, or some of them, are not Rivers, and therefore open to the common liberty of the Fishery ? 2nd. The Miramichi and Buctouche in New Brunswick, being submitted to be Rivers, by what lines are the mouths of those Rivers respectively to be determined?

In coming to any conclusion on these points, it is unquestionably the duty of the Umpire to look at the spirit and object of the Treaty,— the causes of difficulty it was intended to remove— the mode of removal proposed.

The classes of Fish sought for in the deep-sea Fisheries strike within “ three marine miles ” from the shore ; the “ bays ” within the headlands are their places of resort, but unlike the Salmon, or the Shad, they do not ascend the Rivers, or particularly seek their entrances. To prosecute the Mackerel Fishery with success, the right of Fishing on the “ sea coast and shores ” within “ three marine miles,” and within the “ bays ” with the privilege of landing for drying nets and curing Fish, was absolutely necessary ; the convenience of a “ harbour,” and the right of Fishing therein, desirable. A “ creek,” which Webster and Maunders both define to be, according to English usage and etymology, “ a small inlet, bay or cove, a recess in the shore of the Sea, or of a River,” and which though, “ in some of the American States,” meaning a small River, Webster says, “ is contrary to English usage, and not justified by etymology, ” would also, in many instances, afford accommodation. A right to the “ sea coast and the shores ”— to the “ harbours ” and the “ creeks,” would thus afford to the Fisherman all that he would require, and leave to the Rivers, rising far in the interior of the respective Countries, and flowing by the homes and hearths of a different nation, the sacred character which would save them from the stranger's intrusion.

The question then that first presents itself, are the twenty-four places named, or any, and which of them, in Prince Edward Island, to be deemed Rivers ?

It is difficult to lay down any general proposition, the application of which would determine the question. There is no limitation as to size, or volume ; the Mississippi and the Amazon, roll their waters over one-fourth the circumference of the earth. The “ Tamar,” the “ Ex,” and the “ Tweed,” would hardly add a ripple to the “ Saint Lawrence,”—yet all alike bear the designation, are vested with the privileges, and governed by the laws and regulations of Rivers. It is not the absence, or prevalence, of fresh or salt water ; that distinction has been expressly ignored in the celebrated case of Horne against McKenzie, on appeal to the House of Lords. It is not the height or lowness of the banks ; the Rhine is still the same River, whether flowing amid the mountains of Germany, or fertilizing the low plains of Holland. It is not the rise or fall of tide, or the fact that there may be little, if any water when the tide is out. The Stour and Orwell in England are dry at low water ; yet they have always been recognized, and treated, as Rivers. The Petitcodiac, in New Brunswick, and the Avon in Nova Scotia, owe their width, their waters, their utility, entirely to the Bay of Fundy ; yet their claim to be classed among rivers has never been doubted. The permanent, or extraordinary extent of the stream, in cases where not at all, or but little influenced by the tides, is no criterion. The periodical thaws, and freshets of Spring and Autumn, in America, make Rivers of vast magnitude, useful for a thousand commercial purposes, in places where, when those thaws and freshets have passed away, their dry beds are visible for weeks. The term “ flottable,” applied to such streams, is well recognized in the Courts of the United States, classing them among Rivers, and clothing the inhabitants upon their banks, with the rights of riparian proprietors, and the public at large with the privilege of accommodation.

An important test may be said to be, the existence or non-existence of bars at the mouths of waters, or streams running into the sea. The existence of such bars necessarily pre-supposes a conflict of antagonistic powers. An interior water forcing its way out, yet not of sufficient strength to plough a direct passage through the sands accumulated by the inward rolling of the sea, would necessarily diverge, and thus leave a bar in front of its passage, just at that distance where the force of its direct action would be expended. Some Rivers, such as the Mississippi and the Nile, make deltas, and run into the Sea. In this case, the extreme land would give a natural outlet. Others again run straight into the Sea, without any delta, and without any estuary. In these cases the bar at the mouth would give a natural limit ; but the bar at the mouth is equally characteristic of its being a River. There are cases again, where the estuary, gradually widening into the Sea, leaves neither bar nor delta to mark its outlet, or determine its character. In such cases, for the latter object, other grounds must be sought on which to base a decision ; and in marking the former, the exercise of a sound discretion could be the only guide.

The decision upon any such question, must, after all, be more or less arbitrary. The physical features of the surrounding country, the impressions

created by local inspection, the recognized and admitted character the disputed places have always borne, constitute material elements in forming a conclusion. The possibility that the privileges conceded by this Treaty may be abused, can have no weight. There will doubtless be found in both countries, men who will disregard its solemn obligations, and take advantage of its concessions, to defraud the revenue, violate local laws, and infringe private rights ; and in thus disgracing themselves, affect the character of the nation to which they belong ; they will, however, meet with no consideration at the hands of the honorable and right thinking people of either country. The framers of this Treaty would not permit such minor difficulties to stand in the way of the great object they had in view, to cement the alliance, and further the commercial prosperity of two Empires. Such difficulties can be obviated, if necessary, by national or local legislation.

The Rivers of Prince Edward Island, whether one or one 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 through it, more or less transversely, not longitudinally. Captain now (Admiral) Bayfield, the accomplished hydrographer, and surveyor of the Gulf of Saint Lawrence, thus describes it :—

“ Prince Edward Island, separated from the Southern shore of the Gulf of the Saint Lawrence by Northumberland Strait, is one hundred and two miles long, and, in one part, about thirty miles broad : but the breadth is rendered extremely irregular by large bays, inlets, and Rivers, or rather sea creeks, which penetrate the Island, so that no part of it is distant more than seven or eight miles from navigable water. Its shape is an irregular crescent, concave towards the Gulf, the Northern shore forming a great bay, ninety-one miles wide, and twenty-two miles deep, out of which, the set of the tides, and the heavy sea, render it very difficult to extricate a ship when caught in the North East gales which frequently occur towards the fall of the year, occasionally blowing with great strength and duration, and, at such times, proving fatal to many vessels.”

This passage has been particularly called to my attention in a very elaborate and able statement of his views, placed before me by the United States Commissioner, who further adds,— “ That Sir Charles A. Fitzroy, the Lieutenant Governor of the Island of Prince Edward, in an official communication to the British Government, calls the Island Rivers, ‘ strictly speaking, narrow arms of the Sea,’”—and that “ Lord Glenelg, in his reply, alludes to them as ‘inlets of the Sea.’ ” On examining the Records referred to by the Commissioner, I find the first to be a dispatch (in January, 1858,) from Sir Charles Fitzroy, to the Colonial Secretary, Lord Glenelg, with reference to the reserves for Fisheries, contained in the original grants in the Island, arising out of the order in Council, under which those grants were issued, and which was as follows :—“ That in order to promote and encourage the fishing, for which many parts of the Island are conveniently situated, there

be a clause in the grants of each Township that abuts upon the sea shore, containing a reservation of liberty to all His Majesty's subjects in general, of carrying 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 five hundred feet from high water mark.”

He then states he enclosed for the information of the Government :—“ A return shewing the several reserves for this purpose contained in the different Townships, from which it will appear that the reservation, as contemplated in the order of Council, has been strictly followed in only twelve Townships. In thirty-two Townships, the reservation is as follows,—‘ and further saving and reserving for the disposal of His Majesty, his heirs and successors, five hundred feet from high water mark, on the coast of the tract of land hereby granted, to erect stages and other necessary buildings for carrying on the Fishery,’—of the remaining twenty-three Townships, eighteen contain no Fishery reservation ; and of five, no grants whatever are on record.” And he then remarks :— “ By reference to a plan of the Island, annexed to the return, your Lordship will perceive that several of the Townships which do contain reservations, abut upon Rivers only ; or more strictly speaking, narrow arms of the Sea.”

Lord Glenelg, in his reply, (May 1838,) says,—“ It appears to me that the reservation made of lands adjacent to the sea coast, or to the shores of inlets from the Sea, for the purpose of Fishing, so far as the right has been reserved to the Queen's subjects collectively, constitute a property over which the power of the Crown is exceedingly questionable.”

It does not appear to me, that these passages bear the construction put upon them, or were intended to designate the Island Rivers generally, or in any way determine their character. Is it not rather a mere qualified mode of expression 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, by 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 years, of a contrary term ? There are Acts of the Assembly vesting rights, imposing penalties, and creating privileges, with reference to these waters, under the name and designation of Rivers, to a series of which I call attention, namely :

Also, to the various reports of the Annual appropriations and Expenditures, to be found in the Journals of the Legislature.

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