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 Northeast 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.'1

"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 Lieut. Governor of the Island of Prince Edward, in an official communication to the British Government, calls the Island Rivers “strictly speaking, narrows 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 Despatch (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.'

64 'He then states he enclosed for the information of the Government—'a return showing 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

1 Bayfield's Sailing Directions for the Gulf and River St. Lawrence, part 3, p. 92.

2 Journals of the Legislative Council of Prince Ed. Island, A. D. 1839. Appendix D.

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[s] 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:-10 Geo. IV., c. 11; 2 Wm. LV., c. 2 and 13; 3 Win. IV., c. 8, 9, and 10; 5 Wm. IV., 3 and 7; 6 Wm. IV., c. 25; 7 Wm. IV., c. 23; 1 Vic., c. 19; 2 Vic., c. 10; 3 Vic., c. 12; 4 Vic., c. 16; 4 Vic., c. 18; 5 Vic., c. 9; 7 Vic., c. 3; 8 Vic., c. 20; 12 Vic., c. 18, c. 35 and 22; 15 Vic., c. 34; 16 Vic., c. 28. Also to the various reports of the Annual Appropriations and Expenditures, to be found in the Journals of the Legislature. “On an examination of these Acts, it will be found that the Legislature of the Island has by a continued series of enactments, extending over a period of thirty years, legislated upon the Rivers,' 'Bays,' 'Creeks,' 'Harbours,' and 'lesser streams' of the Island, recognizing their existence and difference, appropriating the local revenues to their improvement, establishing rights, and creating private interests with reference to them, entirely inconsistent with their being aught but the internal waters and rivers of the Island, and directly at variance with the terms and character of legislation, which would have been used had they been considered 'arms' or mere 'inlets of the 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 conclusive of the character of the subject legislated upon. The legislation of Prince Edward Island, in parî materiâ, is entitled to the same consideration. The British Government at the present day, neither legislates away, nor interferes with the local administration of the affairs of the Colonies. This very treaty is dependent upon the action of the Provincial Parliaments, and based upon the preservation of private rights. Can it be contended, or shall it be admitted, that this Treaty abrogates the Legislation of years, ignores the Laws of the Island, and by implication annuls rights and privileges the most sacred a Colony can possess? Certainly not. If it be desirable from the peculiar conformation of this Island and its waters, that the latter should be viewed in a light different from that in which they have been hitherto regarded, the local Legislature can so determine.

"In a very important decision of the Supreme Court of Iowa, reported in the American Law Register, issued at Philadelphia, in August 1857, it was determined, 'that the real test of navigability in the United States, was ascertained by use, or by public act of declaration; and that the Acts and Declarations of the United States, declare and constitute the Mississippi River, a public highway, in the highest and broadest intendment possible.' Shall not therefore the public Acts and Declarations of the

Legislature of Prince Edward Island be considered of some authority in determining what are the Rivers of that Island?—and particularly when those Acts and Declarations were made long anterior to the present question being raised? But might it not also be assumed, that where a country had, by a long series of public documents, legislative enactments, grants, and proclamations, defined certain waters to be rivers, or spoken of them as such, or defined where the mouths of certain rivers were, and another country subsequently entered into a Treaty with the former respecting those very waters, and used the same terms, without specifically assigning to them a different meaning, nay, further stipulated that the Treaty should not take effect in the localities where those waters were, until confirmed by the local authorities, might it not be well assumed that the definitions previously used, and adopted, would be mutually binding in interpreting the Treaty, and that the two countries had consented to use the terms in the sense in which each had before treated them in their public instruments, and to apply them as they had been previously applied in the localities where used? I think it might.

"Admiral Bayfield did not intend by the term 'sea creeks,' as he informs me in reply to a communication on this subject, to convey the impression contended for by the United States Commissioner, that they were not Rivers. He says, under date of 3d September, 1857:-'With reference to the term "sea creeks," to which your attention has been called as having been used by me at page 92, and various other parts of the Directions, I have used that term in order to distinguish the inlets from the small streams (disproportionably small in summer) that flow through them to the sea.

"In the instances referred to, I mean by "sea creeks," inlets formed by the combined action of the Rivers and the Tides, and through which those rivers flow in the channels, more or less direct, and more or less plainly defined by shoals on either side. Wherever there are bars across the inlets, as is very generally the case, I consider the channels through those bars, to form the common entrances from the sea to both Inlets and Rivers; for it appears to me, that a River is not the less a River, because it flows through a creek, an inlet, or an estuary. The point where the fresh water enters the estuary, and mixes with the tide waters, may be miles inland, but it does not, I think, cease to be a River until it flows over its bar into the Sea.'

“This view of Admiral Bayfield, that such waters do not lose their character of Rivers because flowing through an inlet, or an estuary, is confirmed by the principles laid down to determine what are 'navigable' Rivers, in the technical sense of the term, as distinguished from its common acceptation. To the extent that fresh waters are backwardly propelled by the ingress and pressure of the tide, they are denominated navigable Rivers; and to determine whether or not a River is navigable both in the common law, and in the Admiralty acceptation of the term, regard must be had to the ebbing and flowing of the tide. In the celebrated case of the River Bann, in Ireland, the Sea is spoken of as ebbing and flowing in the River. These principles are recognized in the Courts of the United States, and the authorities collated, and most ably commented upon by Angel. "Indeed, it would seem that the Commissioners themselves have not attached to this term 'sea creek,' as used by Admiral Bayfield, the force

or character which it is now alleged it should bear, as they have by their Record No. 10, under date of 27th of September 1856, transmitted to me, with the other official documents in this matter, pronounced the 'Montague' to be a River,' and determined upon its mouth, though Captain Bayfield, in his Sailing Directions, before referred to, page 123, speaks of it as a 'sea creek.' It has been urged, that if these places are declared to be Rivers, and not creeks or harbours, then where are the creeks and harbours contemplated by the Treaty. To this it may be answered, that this Treaty does not contemplate Prince Edward Island alone—and even though none such might be found within its narrow circle-yet they may be found in numbers along the five thousand miles of coast, exclusive of Newfoundland, which this Treaty covers, extending from 36th parallel of north latitude in the United States, to the furthest limits of Labrador.

"With these preliminary observations, I shall take up the disputed places in Prince Edward Island, and proceed to decide upon them, in the order in which they have been submitted:

"NO. 1.-VERNON.

"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty, concluded and signed at Washington on the 5th day of June, A. D. 1854, having proceeded to and examined the Vernon, in Prince Edward Island, concerning which a difference of opinion had arisen between Her Majesty's Commissioner and the Commissioner of the United States, as disclosed in Record No. 11 of their proceedings, am of opinion that the Vernon is entitled to be considered a River.

"It has, at low tide, water for boat and shallop navigation. It has good breadth, requiring a long and strong bridge to cross it. Vessels are built two miles from its mouth. As you drive along its banks, there would be no hesitation in speaking of it, were no question raised, as a River. It would appear as if the salt water were an intrusion into a channel, formed and supplied by a running stream, enlarging and deepening the channel, but finding it there, the banks and surrounding lands all bearing towards the Vernon the same relative formation as the banks towards admitted Rivers. It is spoken of in Bayfield's Sailing Directions as a River, and as such in various Acts of Assembly.

"As such Arbitrator or Umpire, I decide that the Vernon is a River. "Dated at Saint John, in the Province of New-Brunswick, this 8th day of April, A. D. 1858.

"NO. 2.-ORWELL.

"JOHN HAMILTON GRAY.

"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty concluded and signed at Washington on the 5th day of June, A. D. 1854, having proceeded to and examined the Orwell, in Prince Edward Island, concerning which a difference of opinion had arisen between Her Britannic Majesty's Commissioner and the Commissioner of the United States, as is disclosed in Record No. 11 of their proceedings, am of opinion that the Orwell is entitled to be considered a River.

"It is spoken of by Bayfield, in conjunction with the Vernon, as a River; has been recognized as such in the Public Acts of the Island; and

described under that designation, as a boundary in the ancient grants, as far back as 1769.

"As such Arbitrator or Umpire, I decide that the Orwell is a River. "Dated at Saint John, in the Province of New-Brunswick, this 8th day of April, A. D. 1858.

"NO. 3.-SEAL.

"JOHN HAMILTON GRAY.

"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty, concluded and signed at Washington on the 5th day of June, A. D. 1854, having proceeded to and examined the Seal, in Prince Edward Island, concerning which a difference of opinion had arisen between Her Britannic Majesty's Commissioner and the Commissioner of the United States, as disclosed in Record No. 11 of their proceedings, am of opinion that the Seal is entitled to be considered a River.

"The Seal is spoken of by Bayfield as a River, and recognized as such in the Public Acts of the Island. It is a small tributary of the Vernon, and as such Arbitrator or Umpire, I decide it is a River.

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

"NO. 4.-PINNETTE.

"JOHN HAMILTON GRAY.

"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty, concluded and signed at Washington on the 5th 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 Majesty's Commissioner and the Commissioner 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-Brunswick, this 8th day of April, A. D. 1858.

"NO. 5-MURRAY.

"JOHN HAMILTON GRAY.

"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty, concluded and signed at Washington on the 5th day of June, A. D. 1854, having proceeded to and examined the Murray, in Prince Edward Island, concerning which a difference of opinion had arisen between Her Britannic Majesty's Commissioner and the Commissioner of the United States, as disclosed in Record No. 11 of their proceedings, am of opinion that the Murray is entitled to be considered a River.

"The Murray is a River, 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 grants in 1769, of Lots 63 and 64, bordering on the 'Murray,' it will be seen that the Crown at that early day drew the distinction between the river, the harbour, and the sea coast, and bounds these lots by the harbour and river, and by the sea