Commissioners' Work in 1857.

While the commissioners were at Eastport Mr. Perley presented a list of twenty-six rivers in New Brunswick. The United States commissioner and surveyor spent the rest of July, the month of August, and a part of September on the New Brunswick coast, and prepared an argument for the umpire in the cases pending before him. On the 3d of October the commission met at the Tremont House, in Boston, and entered upon the discussion of the New Brunswick rivers. Mr. Perley finally withdrew the Eel, Jacquet, Gaspereau, Upper Salmon, Mispeck, Popologan, Digdequash, and Bocabec. The commissioners agreed on the limits of reservation in thirteen cases, the Restigouche, Bathurst, Pokemouche, Tracadie, Tabisintac, Kouchibouguac, Richibucto, Sackville, Peticodiac, Shepody, Musquash, Le Preau, and Magaguadavic. The reservation at Minudie River, in Nova Scotia, was also determined. In three cases, the Cocagne, Shediac, and St. John, the commissioners were at the time unable to agree. The last of the New Brunswick rivers, the Caraquette, Bay of Chaleurs, was reserved at Mr. Perley's request.

Mr. Cushman on the 17th of October presented a list of thirteen rivers in Maine, but Mr. Perley was not ready to enter upon the consideration of them. They were examined during the month by Messrs. Cushman and Cutts.

Apart from the cases before the umpire, the work remaining to be done by the commission included the examination of the coasts of Canada, Nova Scotia, part of Newfoundland, and of the United States from the Providence River to the thirtysixth parallel of north latitude, and it was estimated that at the past rate of progress the accomplishment of the task would require three years more. The consumption of time involved in the personal examination of the coasts led Mr. Cushman to propose the use of charts in place of the actual inspection of all the places sought to be reserved. Mr. Perley however declined to concur on the ground that "such a procedure would be in direct contravention of the Reciprocity Treaty." 3

1 Mr. Cushman to Mr. Cass, Sec. of State, December 18, 1857.. (MSS. Dept. of State.)

(MSS. Dept. of State.)
(MSS. Dept. of State.)

2 Mr. Cushman to Mr. Perley, February 11, 1858. 3 Mr. Perley to Mr. Cushman, March 30, 1858. Article I. of the treaty provided: "Such commissioners shall proceed to examine the coasts of the North American provinces and of the United States," etc.

Delivery of Umpire's
Awards.

On the 17th of April 1858 the commissioners met again at the Tremont House, in Boston, where they received the umpire's awards, which were dated at St. John, New Brunswick, the 8th of the same month. In respect of the twenty-four places in Prince Edward Island, eighteen of the awards were in favor of the British claim and six in favor of the American; and the awards in respect of the mouths of the rivers Miramichi and Buctouche, in New Brunswick, were in favor of the lines claimed by Her Britannic Majesty's commissioner. With these results the commissioner and surveyor of the United States were greatly dissatisfied; and in a communication to Mr. Cass of February 15, 1859, Mr. Cutts attacked the decisions on the ground of "flagrant partiality," and suggested to the Department of State "the propriety of calling the attention of Her Majesty's government to the extraordinary character of the awards and document published by the umpire, with a view to have all or a portion of the cases reconsidered and appealed to some neutral authority."1 Mr. Dallas, then minister of the United States at London, was instructed to lay the matter before Earl Russell, who was also informed that the American commissioner would be directed to suspend any proceedings toward carrying the awards into effect until the pleasure of Her Majesty's government on the subject should be known.2 Earl Russell replied in a note to Lord Lyons of March 22, 1860. In this note he approved the awards of the umpire and declined to reopen the cases to which they applied; but with regard to the appointment of another umpire he said:

"With respect to the question of appointing another Arbitrator in any future cases of difference which may arise between the Commissioners, your Lordship will state to General Cass that Her Majesty's Government sincerely desire that the proceedings of the commission should be conducted with harmony and good feeling, and that in cases in which the Commissioners may disagree it is indifferent to Her Majesty's Government who is selected to arbitrate between them, provided he be a gentleman of strict integrity, and with a sufficient acquaintance of the subject to be brought before him.

MSS. Dept. of State.

2 Mr. Appleton, Assistant Sec. of State, to Mr. Hubbard, November 11, 1859. (MSS. Dept. of State.)

"It will be a difficult matter to find a gentleman, possessing the requisite qualifications for such an office in a superior degree to Mr. Gray; but in view of the clearly expressed desire of the Government of the United States, and out of friendly consideration for that Government, Her Majesty's Government will not object to authorize Mr. Perley in any cases of future difference with his American colleague, to proceed, in concert with that colleague, to the selection of a fresh arbitrator."

In coming to this conclusion it is not improbable that Earl Russell was influenced by consideration of the circumstances under which the umpire was appointed. The treaty, after providing for the appointment and qualification of the commissioners, said:

"The commissioners shall name some third person to act as an Arbitrator or Umpire in any case or cases on which they may themselves differ in opinion. If they should not be able to agree upon the name of such third person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be the Arbitrator or Umpire in cases of difference or disagreement between the Commissioners. The person so to be chosen to be Arbitrator or Umpire shall, before proceeding to act as such in any case, make and subscribe a solemn déclaration in a form similar to that which shall already have been made and subscribed by the Commissioners, which shall be entered on the record of their proceedings. In the event of the death, absence, or incapacity of either of the Commissioners, or of the Arbitrator or Umpire, or of their or his omitting, declining, or ceasing to act as such Commissioner, Arbitrator, or Umpire, another and different person shall be appointed or named as aforesaid to act as such Commissioner, Arbitrator or umpire, in the place and stead of the person so originally appointed or named as aforesaid, and shall make and subscribe such declaration as aforesaid."

It would not be unreasonable to construe this provision as authorizing the appointment of one umpire to determine all cases of difference as they should arise. Nevertheless the commissioners seem in the first instance to have acted on a different construction of it. On June 19, 1857, Lord Napier informed the Department of State that Mr. Perley, the British commissioner, had nominated Mr. Gray as umpire. This nomination was made without consultation with Mr. Cushman, the American commissioner, who seems to have contemplated the selection of "some neutral authority;" and when the commissioners met at Eastport in July they chose an umpire in the manner which has already been described.' But before casting

Mr. Cutts to Mr. Cass, Sec. of State, February 15, 1859. (MSS. Dept. of State.)

1

lots the commissioners, according to Mr. Cushman's statement, agreed that the umpire then to be selected should be appointed only for such cases of disagreement as had occurred up to that date; that the appointment of the umpire then to be selected should terminate on delivering his awards; and that in any future case or cases of disagreement there should be another and other determinations by lot for the choice of an umpire." Mr. Perley's version of the understanding, which, like that of Mr. Cushman, was given immediately after the delivery of the umpire's awards, was that it was "verbally agreed" that "the cases then in difference should be referred to the decision of the umpire then to be chosen," and that when those were decided the commissioners "should, if so minded, proceed to select another umpire, to whom further cases of dif ference should be referred." He said, however, that his attention had "since been drawn to the fact that the commissioners "were not competent under the treaty to make or carry out such an agreement," and that they could not "dismiss the present umpire, or name another, except in the event of his death, absence or incapacity, or his omitting, declining or ceasing to act as such umpire." Mr. Cushman declared that the agreement was unqualified, and that he should insist on its being carried into effect, and of this intention he formally notified both the British commissioner and the umpire. Under these circumstances it was manifestly conducive to the harmonious execution of the treaty to permit a new umpire to be chosen, whatever may have been the views of either government as to the true construction of the treaty.

Surveyor.

The argument submitted by Mr. Cushman Views of United States to the umpire bore date August 17, 1857. Commissioner and It maintained that the twenty-four places in Prince Edward Island claimed by the British commissioner as rivers were either bays, harbors, or creeks, and as such not intended to be reserved from the common liberty of fishing. In support of this contention it was argued (1) that in every case of doubt the treaty was to be construed so as to secure the greatest possible liberty of fishing and avoid misunderstandings; (2) that to treat

Mr. Cushman to Mr. Perley, April 18, 1858. Mr. Perley to Mr. Cushman, April 19, 1858. 3 Mr. Cushman to Mr. Perley, April 26, 1858; 1858. (MSS. Dept. of State.)

5627-28

(MSS. Dept. of State.) (MSS. Dept. of State.) same to Mr. Gray, April 27,

brooks and inlets as rivers would require the marking of over 250 lines and lead to confusion; (3) that no imaginary fear of smugglers or of competition by reason of fishermen entering the body of a county could avail as an argument for a stringent operation of the granting terms, since no such fear was entertained by the negotiators when they opened the bays, harbors, and creeks to the fishermen of both countries. As to the particular cases of disagreement, Mr. Cushman quoted the description of Prince Edward Island given by Captain (afterward Admiral) Bayfield in his sailing directions for the Gulf of St. Lawrence, in which it was stated that the island "is 102 miles long, and in one part about 30 miles broad, but the breadth is rendered extremely irregular by large bays, inlets, and rivers, or rather sea-creeks, which pene. trate the island so that no part of it is distant more than 7 or 8 miles from navigable water." It was contended that the bodies of water claimed in this island by the British commissioner were chiefly salt creeks. A river, said Mr. Cushman, was in geographical science "an inland current of fresh water, formed by the confluence of brooks, small streams or mountain torrents, flowing in a bed, and discharging into some other river or lake, or into a bay, a gulf or the ocean.” He maintained that the use of the word "creek" to denote a small river was contrary to English usage and inadmissible in geographical science, and that the word, as used in the convention of 1818 and the reciprocity treaty, signified "every inlet or part of the sea, more or less extensive and navigable, and into which no stream larger than a brook discharges." Prince Edward Island, " long and narrow, intersected in all directions by deep indentations of the sea, and with low land at its eastern and western extremity and along the coast," was, said Mr. Cushman, characterized by "the excessive number of bays, harbors and creeks;" the extent of the country drained, the irregularity of its form, and its generally level character forbade "the formation, or even the idea, of rivers;" its "fresh water streams," consequently, were "mere small brooks," often falling into a long, broad, deep creek or inlet of the sea, or into a bay. In the twenty-four disputed cases the fresh-water streams ranged from "1 to 6 miles in length, and from 15 feet in depth to 3 inches deep to the smallest possible flow of water;" and it was upon the existence of these "brooks," "dignified with the names of rivers," that a claim "to large