the United States Commissioner claimed that the line connecting Negro point and Red head designated the mouth.*
It is noteworthy that the inner line—the line claimed by the United States Commissioner—includes in the river St. John the whole of the Inner St. John harbour.
Had the United States Commissioner had the support of Admiral Learmonth, doubtless, he would have claimed that the mouth was somewhere above Kennebecasis bay.
The opinion of the Umpire under the Reciprocity Treaty, 1854, is pertinent in connection with the discussion as to the determination of the “ mouth ” of a river. Referring to the determination of the mouths of the Miramichi and Buctouche rivers, he said :—
“ There are large and magnificent bays and harbours, unconnected with Rivers ; there are bays and harbours dependent upon and formed by 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 in one locality only, 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 obtained 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 Rivers' from the 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.
* History and Digest of the International Arbitrations to which the United States has been a party. By John Bassett Moore, Vol. I, p. 478.
[following p. 3846]
“ 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 of 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 or 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 bank 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 work the mouth of the Amazon is given at 'one hundred and fifty-nine miles broad.'
“ In 'Harper's Gazetteer' (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 Saint Lawrence, in two different places in the same work, is described as entering 'the Gulf of Saint Lawrence at Gaspa Point, by a mouth one hundred miles wide.' And also that 'at its mouth, the Gulf from Cape Rosier to Mingan Settlement in Labrador, is one hundred and five miles in length.'”*
The Umpire decided that a line connecting Fox and Portage Islands designated the mouth of the Miramichi.
IV. Admiral Learmonth devotes considerable space to a discussion of inlets of two kinds. As it has already been demonstrated that lake Melville is not an inlet, such discussion is not germane to the subject.
* History and Digest of the International Arbitrations to which the United States has been a party. By John Bassett Moore, Vol. I, pp. 468-469.
V. As Burrard inlet, Masset inlet, Sandwich bay, Skyring water and the sea of Marmora open into the sea, without any fall, comparisons with lake Melville arc of no value.
VI. Admiral Learmonth states that :—
“ Although the time available was short and it was not possible to employ the test of a closure for the actual levelling operations between the two Tidal Station.”
This statement shows a complete misapprehension of the levelling operations. Admiral Learmonth seems to be under the impression that the levelling was done with an ordinary dumpy or a “ Y” level. It is necessary, therefore, to state that the levelling was done with a precision level of the highest grade and the work was carried out by one of the ablest levellers in Canada.
The whole line was levelled and re-levelled in opposite directions, and, wherever the difference was in excess of the very narrow limits of permissible error, it was re-levelled.*
VII. Admiral Learmonth states that :—
“ This difference of Mean Tidal Level determined between August and September is accepted in the Canadian Report as not being an unchanging quantity representing a permanent difference between the level of Lake Melville and Mean Sea Level.”
So far from this deduction being correct, it is exactly the opposite. The Canadian report is insistent that there is a “ permanent difference between the level of Lake Melville and mean sea level,” that lake Melville is the higher and that such difference is permanent.
This permanent difference is due to the inflow from the upper Hamilton, Northwest, Kenamu and other tributaries of the Hamilton which fall into its lake-expansion, called, for the sake of convenience, lake Melville.
That the outflow of the Hamilton is arrested for part of the day and that such arresting slightly increases the fall is immaterial. The only essential point is that, so long as the Hamilton discharges through the so-called “ narrows,” the fall will be there and such fall fully justifies Canada's contention that it is the lowermost portion of the Hamilton river.
Navigability or non-navigability is immaterial. Whether the “ narrows ” is navigable by a steamship of the greatest tonnage or so studded with rocks as to be practically un-navigable is immaterial and unimportant. The crucial test of its riverine quality is : Is there a fall?
VIII. Admiral Learmonth states that :
“ The Period embraced by the observations must also be carefully noted. They were limited to a Period of two months, at the end of the summer in a
* See Mr. Montgomery's report, Annex A, p. 306.
particular year, and conclusions correctly drawn for this Period may not be true for other Periods, and should not be taken as a permanent state of the physical conditions that occur. Thus the Difference in Level found may be seasonal only, and due to the fresh water accumulating in the broad expanse of lake Melville during the summer flood and then making a gradual egress through the Narrows.”
This is a statement that the water in lake Melville may have been abnormally high during the summer of 1923—an assumption that cannot be justified. It would be as reasonable to assume that the water in lake Melville was abnormally low in 1923 and that, in a normal season, the descent would have been greater than was found to be the case.
The Canadian observers were in close touch with the local inhabitants and, had 1923 been an abnormal summer, they would have heard it discussed by them. That such was not the case is proof that it was neither an abnormally wet nor an abnormally dry summer.
In 1894, A. P. Low ascended the Hamilton river. Leaving North West River House on snowshoes on 5 March, he reached the portage past the Grand falls on 30 April. From 1 to 29 May he was either in. camp or portaging past Grand falls. In short, for nearly four weeks, he was waiting for the break-up of the Hamilton river.
He states that on 11 June, the ice had all gone out of the river and on 14 June, he states that the river fell three inches during the night, which indicates that the crest of the spring freshet has passed.
It is notorious that June is the high-water month in the Hamilton ; that the June freshet water is discharged before the end of July and that August and September are summer-water months.
To put forward theories and suppositions of abnormal conditions in opposition to well-ascertained facts and measurements of the highest degree of accuracy is futile.
The records of the Hudson's Bay Company post at North West River show the following :—
1890-1909.—The opening of the river ranged from 5 April to 19 June ; average date was 10 May.
1923.—On 24 April, the river was “ practically clear ” in front of North West River post.
1924.—On 22 May, Grand lake was open.
1925.—On 25 May, the Beaver was launched showing that the river was open in front of the post and that navigation was open in lake Melville.
Mr. Ralph Parsons, District Manager of the Montreal-Labrador District of the Hudson's Bay Company, who, for some time, was in charge of the Lake Melville posts and is thoroughly familiar with conditions on the Labrador coast, states that the freshet usually commences about mid-May and lasts
three weeks. He states that the freshet period is almost always over by 20 June, and certainly not later than 1 July. After that the flow is quite normal.
T. L. Blake, “ an old trapper who has passed most of his days ” at lake Melville states that :
“ The flow of water following the spring freshets becomes normal about the middle of June each year.”
Admiral Learmonth states that :
“ Nothing short of a prolonged Series of Observations would suffice to establish with certainty the existence of any Permanent Difference of Level between the river and outer portions of Hamilton Inlet.”
So far as this can be taken as a statement that a “ prolonged series of observations ” would demonstrate that there was no fall between lake Melville and mean sea level, I take direct issue with such statement.
It is possible that such “ series of observations ” might reduce the fall as determined by Canadian observers in 1923 by a few hundredths of a foot or it might increase it by a similar amount but, on the other hand, I assert that, in the nature of things, so long as the discharge of the Hamilton and its tributaries, passes through the “ narrows ” there is and must be a fall there which, for the twelve-month period, would be as great, or greater, than the fall determined in August-September, 1923.
Admiral Learmonth states that the “ prolonged series of observations ” “ would have to be determined with great precision,” which seems to indicate that the work already done was not done with great precision. The answer to that inference is an assertion that it was done with great precision.
IX. Admiral Learmonth states that :
“ When attempting to compare the slope of the River St. Lawrence with the slope which has been deduced for the Narrows of the Hamilton inlet, certain cautions should be regarded :
(a) The levelling operations referred to above were not sufficiently prolonged or extensive to prove the existence of any permanent slope in the Narrows.
(b) In the case of the St. Lawrence, the Gulf of that name is an undoubted Inlet of the Sea, which gradually as it is ascended merges into the well-known river system in order to define a division between the two, some more or less arbitrary line of demarcation a choice of criteria must be adopted ; in the case of the Hamilton Inlet, where all vessels have natural permanent access from the open sea free of all obstruction, by means of a short, deep, narrow connecting Waterway to a Sea Basin which is navigable without hindrance to its head, no river enters into the question.”