« 이전계속 »
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 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 gupersede 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.
“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 benetits they are now deriving and may yet derive from its adoption, this 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 suficient depth of water on it at all times for ships of six and seven hundred tous, 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 ful] 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.'
“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 iniles 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 Gaspé 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.'
“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 Escuminac beacon, and six and a half miles deep from that line across its mouth to the main entrance of the Miramicbi, between Portage and Fox Islands. The bay is formed by a semicircular 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 S. W., is 280 fathoms wide and 3 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 9 feet over it at low water at the time of our survoy. Within the Gully, a very narrow channel only fit for boats or very small craft, leads westward up the inner bay. The shoal water extends 1miles 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 17 miles to the S. W. Portage Island is 4 miles long, in a S. W. by S. direction; narrow, low, and partially wooded with small spruce trees and bushes. The ship channel between this Island and Fox Island, is 14 miles wide.
"Fox Island. 34 miles long, in a S. S. E. direction, is parrow 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, aud nowhere rise higher than 50 feet above the sea. They are incapable of agricultural cultivation, but yet they abound in plants and shrubs suited to such á 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 14 miles long, in a S. E. direction. Fox Gully, 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 Gully, between the island of the same name and the mainland, is about 200 fathoms wide, but is not quite so deep as Fox Gully. 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 Gully, along the low shore of the mainland, in an E. S. E. 4 E, direction, brings us to the beacon at Point Escumenac, and completes the circuit of the bay.
66 The Bar of Miramichi commences from the S. E. end of Portage Island, and extends across the main entrance and parallel to Fox Island, nearly 6 miles in a S. E. by S. 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 7 or 8 miles wide. The depth of water across the bay is sufficient for the largest vessels that can cross the inner bar, being 24 fathoms at low water in ordinary springtides, with muddy bottom.
"Sheldrake Island lies off Napan Point, at the distance of rather more than 3-quarters of a mile, and bears from Point Cheval N. W. by W.14 miles. Shallow water extends far off this island in every direction, westward to Bartiboque 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 tills 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 nile apart, with a cove between them, and about a mile W. S. W. of Sheldrake Island. The entrance of Miramichi River is 3-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 Bartiboque River, a mile N. W. by W. W. from Sheldrake Island.'
“ 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:
66 * 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 N. E. and S. E. alongshore of Tabisintac, as well as from Point Escumenac. It sets fairly through the ship channel at the rate of about 17 knots at the black buoy, increasing to 2 or 27 knots in
strong spring-tides between Portage and Fox Islands, where it is strongest. The principal part of the stream continues to tow 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,) desigpates 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.
" THE BUCTOUCHIE.
“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, inarked 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 4° 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 tishing 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 wbich 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 deterinine 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:
""Buctonche 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 Buctoniche 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 24 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 (Irawn 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 month 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.