Lawrence, the rivers which fall into the bays of Chaleurs
and Fundy might be comprised in the same genus with
the rivers which fall directly into the Atlantic,
still the St. John and the Restigouche form a distinct
species by themselves and do not belong to the species
of rivers which fall directly into the Atlantic,
for the St. John and Restigouche are not divided in
company with any such last-mentioned rivers.”
The undersigned considers it unnecessary to enter
into the question whether according to the context
the circumstance expressed by the adverb “alone”
has reference to the verb “divide” or
to the verb “include,” because even allowing
it to refer to the former it does not appear to the
undersigned that his interpretation of the passage
is thereby impaired or that of Mr. Fox sustained.
The undersigned conceives that the arbiter contemplated
two different species of rivers as admissible
into genus of those which “fall into
the Atlantic,” to wit, those which fall directly
into the Atlantic and those which fall into it indirectly;
that the arbiter was further of opinion, though at
variance with the idea entertained in that respect
by the United States, that the rivers St. John and
Restigouche, emptying their waters into the bays of
Fundy and Des Chaleurs, did not belong to the species
of rivers falling directly into the Atlantic;
that if they were considered alone, therefore,
the appellation of “rivers falling into the
Atlantic Ocean” could not be regarded as applicable
to them, because, to use the language of the award,
it would be “applying to two exclusively special
cases, where no mention was made of the genus, a generical
expression which would ascribe to them a broader meaning;”
but it is not conceived that the arbiter intended
to express an opinion that these rivers might not
be included with others in forming the genus
of rivers described by the treaty as those which “fall
into the Atlantic,” and that upon this ground
they should be wholly excluded in determining the
question of the disputed boundary. While, therefore,
the undersigned agrees with Mr. Fox that the arbiter
did not consider these rivers as falling directly
into the Atlantic Ocean, the undersigned can not concur
in Mr. Fox’s construction when he supposes the
arbiter to give as a reason for this that they are
not divided in company with any such last-mentioned
rivers—that is, with rivers falling
directly into the Atlantic. Conceding
as a point which it is deemed unnecessary for the
present purpose to discuss that the grammatical construction
of the sentence contended for by Mr. Fox is the correct
one, the arbiter is understood to say only that those
rivers are not divided immediately with others
falling into the Atlantic, either directly or indirectly,
but he does not allege this to be a sufficient reason
for excluding them when connected with other rivers
divided mediately from those emptying into the St.