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

'Appendix 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.'

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."

was inspected, and from the 2d to the 7th of June the commissioners, in session at Portland, agreed on all the Maine rivers. On the 12th of June Mr. Perley submitted a list of seventytwo rivers in Nova Scotia and Cape Breton.

Changes of Commissioners.

On July 1, 1858, Mr. Cushman, who had resigned, was succeeded by Benjamin Wiggin as commissioner. Mr. Wiggin spent July and part of August in examining rivers in the United States. From the 7th to the 12th of November he examined the rivers flowing into Long Island Sound, and on the 13th of November he met Mr. Perley at the St. Nicholas Hotel, in New York City. During this session they agreed on all the rivers in Nova Scotia. Nothing was done as to the rivers in Cape Breton. Four Connecticut rivers were marked.

On March 9, 1859, John Hubbard was appointed United States commissioner in place of Mr. Wiggin, resigned. The coast of the United States from the St. Croix to the Hudson had now been examined and the rivers marked, but nothing had been done south of New York. In the British provinces the rivers of New Brunswick and Nova Scotia had been marked and those in Prince Edward Island examined, while the rivers of Cape Breton, Canada, and Newfoundland yet remained to be inspected. Owing to the continued suspension of the umpire cases, the commissioners were at this time unable to agree on a plan of joint operations, and decided to proceed separately. Mr. Hubbard examined the coasts of the United States as far as the Susquehanna, and then proceeded to Cape Breton. He also examined the river St. Lawrence. In November he met Mr. Perley in Philadelphia. During the year 1860 Mr. Hubbard reviewed the St. Lawrence and certain rivers along the northern gulf coast of Canada from Mount Joly to Point de Monts, and also circumnavigated Newfoundland, and hav ing completed his field work he invited the British commissioner to fix a time for deciding upon all places not already marked. The commissioners met in Boston on the 15th of November. "We agreed and decided upon," says Mr. Hub bard, "all places that remained undetermined in Her Majesty's Provinces, including the river St. Lawrence, and excepting

Mr. Cushman in a report of July 2, 1858, stated that the expenditures of the commission during the three preceding years had been $26,999.29. 2 Mr. Hubbard to Mr. Cass, Sec. of State, December 10, 1859. (MSS. Dept. of State.)

only those of Newfoundland and those lying on the northern Gulf coast of Canada between Mt. Joly and the western extremity of Anticosti. On the United States coast but one was marked, the Hudson, making in all 45 rivers marked and finally disposed of this year. Her Majesty's commissioner requires further time to bring his examinations up to ours."1

In March 1861 Mr. Hubbard was succeeded as commissioner by E. L. Hamlin.

On the 12th of August 1862 Mr. Perley died, and his place was not filled till the following year, when Joseph Howe, of Nova Scotia, was appointed to succeed him.

Close of Commission's
Work.

This change caused much delay, since Mr. Perley had done a great deal of field work of which his successor could not, under the cir cumstances, avail himself. But when the treaty was termi nated in 1866, all the delimitation had been completed except on a small section of the southern coast of Newfoundland and a section of the coast of Virginia.

After the commission had, by reason of the Report of Mr. Cutts. termination of the treaty, ceased to exist, Mr. Cutts made the following general report

of its proceedings:

"WASHINGTON CITY, D. C., March 31st, 1866. "Hon. WM. H. SEWARD, Secretary of State.

"SIR: I have the honor to submit the following general Report of the proceedings and results of the Joint Fishery Commission, appointed under the 1st Article of the Reciprocity Treaty between the United States and Great Britain, from the date of its organization in 1855, to the termination of the Treaty, March 17th, 1866.

"DUTIES OF THE COMMISSIONERS.

"I. Each to subscribe a solemn declaration that he would impartially, &c., examine and decide upon all such places as were intended to be excluded from the common liberty of fishing.

"II. To examine the coasts embraced within the provisions of the Treaty.

"III. To decide upon what places' were to be considered as Rivers' and intended to be reserved; and when any such

Mr. Hubbard to Mr. Cass, Sec. of State, December 8, 1860. Mr. Perley had not examined Newfoundland nor the coast of the United States south of the Hudson. There was a part of Canada also of which he had not completed the examination. (Ibid.)