"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 declaration 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 commis- sioners met at Eastport in July they chose an umpire in the manner which has already been described. But before casting

1 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 noti fied 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

1 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

and navigable bodies of salt water" had been preferred. Captain Bayfield had called these bodies of water "sea-creeks" or "tide inlets," and had described them as having "brooks," "small streams," or an "insignificant quantity of water at their heads." Sir Charles A. Fitzroy, lieutenant-governor of the island, in an official communication to the British Government, referred to them as "strictly speaking narrow arms of the sea."1 Lord Glenelg, in his reply, alluded to them as "inlets of the sea."2 The term sea-fishery was, said Mr. Cushman, introduced into the reciprocity treaty for the purpose of distinguishing river or fresh-water fisheries, such as the salmon and shad, from salt-water fisheries, and not for the purpose of designating localities and confining fishermen to the deep sea. The "coasts, creeks, bays and harbors" were opened to the fishermen of both countries.

The umpire on the other hand held that it was not "the absence or prevalence of fresh or salt water," nor "the height or lowness of the banks," nor "the rise or fall of the tide, or the fact there may be a little, if any, water when the tide is out," that made a river; that an "important test" of a river was the existence of a bar at the mouth of the stream, implying a conflict of forces and an effort of interior waters to force their way out; that there were cases again where an estuary gradually widened into the sea, leaving neither bar nor delta to mark its outlet or determine its character; that the decision on any such question must after all be more or less arbitrary, and depend more or less on "the physical features of the surrounding country, the impressions created by local inspection, the recognized and admitted character the disputed places have always borne." The "rivers" of Prince Edward Island must, said the umpire, necessarily be small. But if weight was to be given to official expressions, it would be found that there was a long list of acts of the colonial legislature distinguishing the waters of the island as "rivers," "bays," "harbors," and "lesser streams," and establishing rights and creating interests in them "entirely inconsistent with their being aught but the internal waters and rivers of the island, and directly at variance with the terms and character of legislation which would have been used had they been considered 'arms' or mere 'inlets of the sea." The umpire also quoted

1Appendix D, Journal of Legislative Council, 1839.
2 Ibid.

from a letter from Admiral Bayfield explaining his use of the term "sea-creeks."

Without quoting further from the awards of the umpire, it is evident that the fundamental difference between his view and that of Mr. Cushman was that the latter maintained that the term "river" should be construed in the geographical sense of an "inland stream of fresh water" of some considerable magnitude, while the umpire, relying upon other circumstances, and largely upon the terms used in acts of local legislation, construed the term as including what Mr. Cushman described as "inland currents of salt water." Questions were also raised by Mr. Cutts as to the consistency of the awards with one another, but as the awards are herewith printed in full it is unnecessary to enter into this subject.

As to the River Miramichi, a special argument was submitted by the American commissioner to the umpire. In this case it was admitted that the stream was a river, but the commissioners differed as to the line which should mark its mouth, and it was upon this difference that the umpire was required to decide. The line claimed by the United States was not at the termination of the purely fresh-water stream, but twentyfour miles lower down, where, at the mouth of "a long estuary of brackish and finally salt water," the fresh water was "entirely lost in and absorbed by the sea." The British claim and the decision of the umpire may be found in the latter's awards. Mr. Cutts contended that the decision disregarded the topography of the place, the opinion of Captain Bayfield, and public acts and grants, to which great weight has been given in other cases.1

Progress of Commission's Work.

After Earl Russell's answer touching the umpire and his awards was received, the commissioners proceeded to agree upon and mark the mouths of the streams in Prince Edward Island which had been held to be rivers. Meanwhile, however, they had been acting upon other places as to which they had not differed. On April 19, 1858, Mr. Perley presented a list of twenty-two rivers in Canada to be examined. In May the River St. Croix

1 Mr. Cutts referred to the Revised Statutes of New Brunswick, I. ch. 1, pp. 16, 17, 44. He quoted Captain Bayfield as saying: "The Miramichi river may be said to commence at Sheldrake Island; for below that point the Inner Bay, with its low and widely receding shores, bears no resemblance to a river."