CHAPTER XIII.

RESERVED FISHERIES UNDER THE RECIPROCITY TREATY OF 1854.

Treaty of 1783; Convention of 1818.

By Article III. of the treaty of peace between the United States and Great Britain of 1783 it was agreed that the people of the United States should continue to enjoy unmolested the "right" to "take fish" on the Banks of Newfoundland, in the Gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries had been accustomed to fish; that they should have "liberty" to "take fish" on the coasts of Newfoundland and of the other British dominions in America; and that they should, subject to certain conditions, also have "liberty" to "dry and cure fish" in any of "the unsettled bays, harbors and creeks of Nova Scotia, Magdalen Islands, and Labrador." After the war of 1812 the British Government maintained that these "liberties," which consisted of certain privileges to be exercised within British jurisdiction, had been terminated by the war; and on October 20, 1818, a convention was concluded by which the United States renounced forever, except as to the Magdalen islands, the southern coast of Labrador, and part of the coast of Newfoundland, "any liberty heretofore enjoyed or claimed to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America."

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The history of these stipulations and of the Reciprocity Treaty. controversies that arose concerning them is narrated in the chapter on the Halifax commission.' It suffices for our present purpose to say that on June 5, 1854, William L. Marcy, as Secretary of State of the United States, and Lord Elgin, as the special representative of Great Britain,

Chapter XVI.

signed a treaty by which all differences touching the convention of 1818 were temporarily merged in a reciprocal arrangement embracing commerce and navigation as well as the fisheries. The fisheries were treated of in the first and second articles. By these articles the American fishermen were readmitted, so long as the treaty should last, to the inshore fisheries which the convention of 1818 had renounced; and on the other hand the British fishermen were admitted to the inshore fisheries on the eastern coasts of the United States north of the thirty-sixth parallel of north latitude. But in each case it was expressly declared that the "liberty" thus granted applied "solely to the sea fishery," and that the "salmon and shad fisheries, and all fisheries in rivers and mouths of rivers," were "reserved" by each country "exclusively" for its own fishermen.

Provision for a Commission.

The places thus reserved from the common liberty of fishing were not specified; and "in order to prevent or settle any disputes" concerning them it was agreed by the first article of the treaty that each of the high contracting parties should, on the application of either to the other, appoint a commissioner, for the purpose of deciding upon all such places as were "intended to be reserved and excluded from the common liberty of fishing." The commissioners were required, before proceeding to any business, to make and subscribe a solemn declaration to perform this service "impartially and carefully," "to the best of their judgment, and according to justice and equity, without fear, favor, or affection to their own country." They were also required to name an umpire, and if they could not agree upon any person for that office, to cast lots. It was provided that the decisions of the commissioners and of the umpire should be given in writing in each case, and be signed by them respectively; and the contracting parties engaged "to consider the decision of the commissioners conjointly, or of the Arbitrator or Umpire, as the case may be, as absolutely final and conclusive in each case decided upon by them or him respectively."

Beginning of Commission's Work.

The commission was organized in 1855. The commissioners on the part of the United States and Great Britain were, respectively, G. G. Cushman, of Maine, and M. H. Perley, of New Brunswick. Richard D. Cutts, of the United States Coast and Geodetic Survey, served as United States surveyor, and George H.

Perley, of New Brunswick, as British surveyor. Messrs. Cushman and Cutts arrived at Halifax August 25, 1855. They sailed with the British commissioner and British surveyor from that port for the river Miramichi, but, encountering head winds, put into the Bay of Buctouche, and examined the Buc touche River. The British commissioner desired to mark the river from Glover's Point to the sand bar. The American commissioner objected to this line because (1) it included the whole of Buctouche harbor, and (2) did not indicate the mouth of any one of the three rivers or streams falling into that har bor. The American commissioner contended that the mouth of a river "is that part or channel of a river by, which its waters are discharged into the ocean or into a lake." Where a river empties into a bay, he maintained that the mouth could not include any part of the ocean or bay properly so called. From Buctouche harbor the commissioners went to the Bay of Miramichi, where again they disagreed, holding different views as to the mouth of the river of that name. They agreed to make some examinations on the coast of the United States before the end of the season, but failed to do so.1

Season of 1856.

May 3, 1856, Mr. Perley, the British commissioner, arrived in Washington, the purpose of his visit being to formulate a plan of work for the coming season. In the absence of Mr. Cushman he conferred with Mr. Cutts, and on the 8th of May a plan was agreed on. It was arranged that the commission should meet in Boston on the 27th of May, and proceed from that point to designate the rivers lying between York River, in Maine, and Cape May, New Jersey, devoting to that task the months of May, June, October, and November. They agreed to devote July, August, and September to the British coasts.

The commission met in Boston on the 31st of May, and on the 2d of June Mr. Cushman presented a list of fifteen rivers in Massachusetts and New Hampshire, viz: Piscataqua, Merrimack, Ipswich, Saugus, Mystic and Charles, Neponset, North River, Weweantic, Mattapoisett, Acushnet, Pamanset, Acoakset, Taunton, Warren, Seekonk. From June 6 to June 25 the coasts were examined, and Mr. Cushman withdrew from time to time the Saugus, Mystic and Charles, Neponset, North River, Mattapoisett, Acushnet, and Pamanset. From the

1 Mr. Cushman to Sec. of State, December 17, 1855. (MSS. Dept. of State.)

26th to the 30th of June the commissioners, at the Tremont House, in Boston, marked the mouths of the rivers Piscataqua, in New Hampshire; Taunton, Merrimack, and Ipswich, in Massachusetts; and Seekonk, in Rhode Island.

After the marking of these rivers the British commissioner presented a list of thirty rivers in Prince Edward Island. During July the American commissioner examined the most important parts of the island, and met the British commissioner at Charlottetown. The latter desired to reexamine some of the streams, and he also declined at that time to present any rivers in New Brunswick or Nova Scotia. The commissioners met again at Bangor on the 25th of September, and remained in session for three days. The British commissioner added a few more streams to his list for Prince Edward Island. The American commissioner would allow only the Dunk, Eliot, Montague, and Morel. The first three were marked, but the fourth was placed among the contested cases, owing to a difference as to the proper line. Mr. Cushman officially declined to recognize twenty-four of the so-called rivers presented by Mr. Perley in Prince Edward Island, maintaining that they were only sea creeks or inlets. Owing to this disagreement nothing was done in October and November.'

Designation of an
Umpire.

After the suspension of the commission's labors, in October 1856, seven months elapsed in which nothing was heard from the British commissioner, and the commission did not meet again till July 17, 1857, when it reassembled at Eastport, in Maine. The first thing necessary to be done was to name an umpire. Mr. Cushman named the Hon. Bion Bradbury, of Maine, and Mr. Perley the Hon. John Hamilton Gray, of New Brunswick. The commissioners were unable to agree on either, and on the 20th of July the names were placed in separate envelopes and the collector of the port at Eastport was called in to make the selec tion. The lot fell on Mr. Gray, who on July 22 at St. John, New Brunswick, in the presence of the United States consul and the mayor of the city, made and subscribed the declaration required by the treaty. The commissioners referred to him their differences as to the rivers Buctouche and Miramichi and as to twenty-four places in Prince Edward Island.

Mr. Cushman to Mr. Marcy, Sec. of State, November 13, 1856. (MSS. Dept. of State.)

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

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

2 Mr. Cushman to Mr. Perley, February 11, 1858. (MSS. Dept. of State.) 3 Mr. Perley to Mr. Cushman, March 30, 1858. (MSS. Dept. of State.) 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.