History and Digest of the International Arbitrations to which the United States Has Been a Party

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.'

"The effect of this is thus singularly felt. A boat leaving Negouac to ascend to 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 the boat at the Horse Shoe Shoal, steering for Negouac, with the ebb tide making, would have the current against it, though Negouac is on a line as far seaward as the entrance to the Portage and Fox Islands; thus showing 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 month 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.

66 THE BUCTOUCHE.

"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 mouth of the River Buctouche, in the Province of New Brunswick, 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. 1 of their proceedings. With reference to the Buctouche it will be seen by Record No. 1:- 'Her Majesty's Commissioner claims, that a line from Glover's Point to the southern extremity of the Sand Bar, marked in red on the Plan No. 1, designates the mouth of the said River Buctouche. The United States commissioner claims, that a line from Chapel Point, bearing South 4o West (magnetic), marked in blue on said Plan No. 1, designates the mouth of said River.'

"On the subject of this River the United States Commissioner addresses me as follows:- 'The red line extending from "Glover's Point," to the Point of the "Sand Bar," is the line marked by Her Majesty's Commissioner as designating the mouth of the River; in that line I could not concur, because it excludes from the common right of fishing the whole of Buctouche Harbour in contravention of the express words of the Treaty.' 'If it had been the duty and office of the Commissioners to indicate the point which constituted the mouth of the Harbour, I should have been disposed to acquiesce in the point and line thus denoted; but from the proposition that it marks the entrance of these Rivers, or any one of them, into the Sea, or Bay, or Harbour, and constitutes their mouth, I entirely dissent.'

"With the views I have already expressed that the mouth of a River does not lose its treaty character because it constitutes a harbour, it becomes important to determine which is the principal agent in forming this harbour, the River or the Sea? If it is a mere indentation of the

coast, formed by the sea, a creek, a bay, or harbour, unformed by and unconnected with any River, one of 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, showing by the width and depth of its channel at low water that it is 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, pp. 53 and 54:— "Buctouche Roadstead, off the entrance of Buctouche River and in the widest part of the channel within the outer bar, 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.

"Buctouche River enters the sea to the S. E., through the shallow bay within 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, namely, 8 feet at low water and 12 feet at high water in ordinary spring tides. But the channel is so narrow, 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 channel in which vessels may ride safely in 2 and 3 fathoms over mud bottom; but off Giddis Point the channel becomes as difficult, narrow, and shallow as at the bar. It is in its course through the bay that the Buctouche is so shallow and intricate; higher up its channel being free from obstruction, and in some places 5 fathoms deep. Having crossed the bar, a vessel may ascend about 10 miles further, and boats 13 or 14 miles, to where the tide water ends.'

"By an examination of the channel we find miles up this River a deep continuous channel of twelve, fifteen, twenty, twenty-four, and thirty feet, down to Priest Point, varying from eighteen to twenty-four feet to Giddis Point, and thence to a line drawn across from the Sand Bar to Glover's Point, from seven to twenty feet, but of greater width. On the outside of this channel, which is clearly defined, and between the Sand Bar and the channel, we find mud flats with dry patches and oyster beds, 'flats of mud and ell 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 Giddis Point to the bar, from one foot to three. On the other side of the channel, from Priest Point and Giddis Point we find 'flats of mud and weeds, with dry patches and oyster beds.' What has given depth 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? Can there be any doubt that it is created by the great body of the river water finding its way to the Sea? The line from 'Glover's Point to the Southern extremity of the Sand Bar, marked in red on plan No. 1,' is claimed by Her Majesty's Commissioner as the mouth of the River, 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 constitutes the mouth of the River.

"This conclusion is consonant with the conclusion at which the Commissioners themselves arrived, in the cases of the Elliot and Montague Rivers in Prince Edward Island, as shown by Records Nos. 9 and 10. The harbours of Charlottetown and Georgetown are clearly within the lines they have marked and designated as the mouths of those Rivers respectively, and thus within the lines of exclusion; but if the express words of the Treaty gave a right to such harbours, because harbours,' then why did the Commissioners exclude them? And why should not the same principle which governed the commissioners in their decision with regard to those harbours,' not (sic) also govern with regard to Buctouche Harbour? "As Arbitrator or Umpire, I decide that a line from Glover's Point to the Southern extremity of the Sand Bar, marked in red on Plan No. 1, in Record No. 2, designates the mouth of the River Buctouche.

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

"JOHN HAMILTON GRAY.

"It may not come within the exact line of my duty, but I cannot forbear remarking, that the true benefits of this Treaty can only be realized to the inhabitants of both countries by a course of mutual forbearance, and enlightened liberality. Captious objections, fancied violations and insults, should be discountenanced; and above all, there should be an abstinence from attributing to either nation or people, as a national feeling, the spirit of aggression which may occasionally lead individuals to act in direct contravention of its terms. Every friend of humanity would regret further misunderstanding between Great Britain and the United States. The march of improvement which is to bring the broad regions of North America, between the Atlantic and Pacific, within the pale of civilization, is committed by Providence to their direction; fearful will be the responsibility of that nation which mars so noble a heritage. "Dated at Saint John, in the Province of New-Brunswick, this 8th day of April, 1858.

Declarations of the
Commissioners.

"JOHN HAMILTON GRAY."

On September 19, 1855, the commissioners recorded their disagreement as to the mouth of the Buctouche River. Their last award, which was made February 13, 1866, related to certain rivers in Newfoundland. The declarations of the commissioners, which include their entries in the umpire cases as well as their awards, are as follows:

1 Declarations Nos. 1 and 2 are given (supra, 451-452,) in the umpire's awards. The copy given in the awards is the British copy, in which the British commissioner's contention and name have precedence. In the United States copy of the declarations the United States commissioner's contention and name have precedence. It is superfluous to say that there is no difference in the substance of the declarations.

the Coast of the United States, (the said River forming the boundary between the States of Maine and New Hampshire,) Do hereby agree and decide, that a line drawn from Frost Point to the Southern end of Wood Island, and thence to the Main Land, the said line bearing N., 68° 45′ E., (magnetic) as shown on the Plan 3, Record Book No. 2, shall mark the mouth, or outer limit of the said Piscataqua 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.-Dated at Boston, United States, on this 26th day of June, A. D. 1856.