the United States and British North America in American bottoms, and there was risk of interruption by hostile cruisers if the party sailed in a British vessel, Great Britain being then at war with France, the Portland Packet was chartered specially for the voyage. She arrived at Halifax on the 16th of August. Her passengers were received with great hospitality and handsomely entertained, especially by the refugee loyalists.'

Formal Meeting of American and British Commissioners.

On the 21st of August Mr. Barclay came up from Annapolis, and on the following day had his first official meeting with Mr. Howell. Mr. Chipman did not appear till the 24th of August. When the commissioners exhibited their Question as to Powcommissions it was found that the commission ers of a Majority of the Commission. of Mr. Howell, after reciting the provisions of the treaty, authorized him, in general terms, "with the other Commissioners duly sworn to proceed to decide the said question and exactly perform all the duties conjoined and necessary to be done to carry the said fifth article into complete execution;" while the King's commission to Mr. Barclay declared, "We will give and cause to be given full force and effect to such final decision in the premises as by our said Commissioner together with the other two commissioners above mentioned or the major part of the said three Commissioners, shall duly be made according to the Provisions of the said Treaty." Mr. Barclay, observing this variance, requested Mr. Howell to bring it to the notice of his government, in order that his commission might be made to conform to that of the British commissioner. Mr. Howell, who doubtless was not aware of the fact that on the 26th of the preceding July the Attorney-General of the United States, Mr. Lee, had advised the Secretary of State that the concurrence of all three commissioners was necessary to a decision, declined to accede to this request, declaring that it was not only his own opinion but that of every man in office in the United States with whom

object of his Investigation." Bond not unnaturally concludes this euphemistic defense of the "person" by declaring: "Knowing Him as well as I did, there was little Danger that our Cause should suffer by a Surcharge of Confidence." (Rives's Correspondence of Thomas Barclay, 47, 48, 52-54, 54-56, 60, 64, 71.)

1 Amory's Life of James Sullivan, I. 320.

21 Opinions of the Attorneys-General, 66.

he had conversed on the subject, that a declaration under the hands and seals of a majority of the commissioners would be final and conclusive. Relying on this declaration, and on his own opinion as to the proper construction of the article, Mr. Barclay decided to proceed with the arbitration, and referred the question to his government. Lord Grenville, though he considered the variation "extremely unimportant in itself," instructed the British minister at Philadelphia, Mr. Liston, to propose an exchange of declarations to the effect that the decision of a majority of the commissioners would be accepted as valid, at the same time observing that no decision could be rendered but in the presence of the three commissioners.2 Mr. Liston, on reading his instructions, failed to perceive the point in doubt, and based his representations on the absence from Mr. Howell's commission of an explicit declaration that the United States would give the final decision of the commissioners "full force and effect," with the result "that Colonel Pickering was a little hurt as well at the imputation of inaccuracy or insufficiency thus cast on an instrument which had been carefully drawn up by himself, as at the surmise that appeared to be started respecting the sincerity and good faith of the Government of the United States." "I did not, therefore," says Mr. Liston, "insist upon any changes being made in Mr. Howell's commission, and contented myself with a general declaration, made to me by authority, that the President would give the decision of the commissioners full force and effect."3

Mr. Barclay to Lord Grenville, August 30, 1796, Rives's Correspondence of Thomas Barclay, 57.

2 Rives's Correspondence of Thomas Barclay, 72.

3 Mr. Liston to Mr. Barclay, October 30, 1797, Rives's Correspondence of Thomas Barclay, 77. Mr. Liston brought the subject before Mr. Pickering in a note of April 1, 1797, in which, after quoting from the commissions, he said: "It is by command of my superiors, sir, that I state this circumstance to you, not doubting that I shall receive assurances that whatever difference there may be between the tenour of Mr. Howell's commission and that of Mr. Barclay, the American Government is no less determined than that of Great Britain to consider as final and conclusive the decision of the three commissioners in question or a majority of them respecting the River St. Croix in the Treaty of Peace, and that the President will readily take every step that may be necessary to give full force and effect to their award on that subject whatever it may be." It is to be observed that the assurance asked for by Mr. Liston applied as well to the decision of the three commissioners as to that of a majority of them. In his reply of April 3, 1797, Mr. Pickering refers to Mr. Liston's note as relating

In another letter to Mr. Barclay of June 11, 1798, only four months before the decision of the commissioners was rendered, Mr. Liston said: "I shall now take an opportunity of explaining the matter to Colonel Pickering; though the distance of time is so great and the dissatisfaction showed by him was so slight, that it is hardly worth while to return to the subject."1 It does not appear that the subject was mentioned again.

On the 26th of August Messrs. Barclay and Question as to Legal Howell requested the agents to attend and

Constitution of

Commission.

advise them as to how far the two commis sioners might proceed in the discharge of their duties before the appointment of a third. As has been seen, the treaty provided that the "said Commissioners" should meet at Halifax, and should have power to adjourn to such other place or places as they should think fit; and that they should have power to appoint a secretary and to employ such surveyors or other persons as they should judge necessary. Mr. Barclay, when in the United States, considered that he was prevented by his instructions from acting officially till he had met the American commissioner at Halifax. Mr. Sullivan had held a different interpretation of the treaty, maintaining that the meeting required to take place at Halifax was a meeting of the three commissioners, and that the commissioners appointed by the two governments might select a third prior to any meet. ing at Halifax. He had expressed this opinion to Mr. Barclay and Mr. Howell at Boston. But, while recalling this opinion, "to the difference in the forms of the commissions," but does not advert to the words "a majority of them." He merely says that Mr. Howell's commission is "deemed adequate,” and declares: "The award of the commissioners will derive its binding force from the treaty itself, which being by our Constitution a supreme law of the land, the President is of course to take care that it be faithfully executed. This is his constitutional duty, sanctioned by his solemn oath the force and effect of which can by no declaratory words be increased. Nevertheless, to evince the candour of the American Government, and to satisfy that of Great Britain, the President has no hesitation to assure his Britannic Majesty, that the Government of the United States, agreeably to the stipulation of the treaty, 'will consider the decision of the Commissioners aforesaid as final and conclusive, so as the same shall never thereafter be called in question, or made the subject of dispute or difference between them,' and that in conformity with his duty as the Chief Executive power of the United States, he will give to that decision its full force and effect." (MSS. Dept. of State.) Rives's Correspondence of Thomas Barclay, 86.

he now suggested that, as it had been determined at Boston that the commissioners required to meet at Halifax were the commissioners appointed by the two governments, they had the power under the treaty to appoint a secretary, order a survey, and adjourn. Mr. Chipman took the opposite view, holding that the two commissioners might when at Boston have selected a third; that the meeting required to be at Halifax was a meeting of the three; and that the two could perform no official act without the third. To this view both commissioners now assented. In this predicament Mr. Sullivan, perceiving that it might become necessary either to prolong the business till 1798 or else to take a third commissioner from Nova Scotia or New Brunswick, on the 27th of August filed a memorial, to which the British agent assented, proposing that the two commissioners, in order to save time, should direct the surveys to be commenced and certain other preliminary matters to be attended to. The commissioners answered: "The two commissioners now present do not consider themselves without the presence of the third as having authority to give an official answer to the above memorial, or to order a survey agreeably to the treaty of amity etc., relating to this case. But as a survey will be necessary in the business, and the having it effected this season will hasten the decision, we in our individual capacity advise the agents to proceed to have a survey made and to procure artists agreeably to the proposals contained in the said memorial."2 On the receipt of this advice the agents agreed forthwith to have surveys made of Passamaquoddy Bay, its islands and shores, and of the rivers Schoodiac and Magaguadavic and their branches, and to have the latitude and longitude of the mouths of the rivers determined, in the hope that the field work might be completed before the winter set in.3

Selection of the Third
Commissioner.

On the day on which this agreement was reached, Mr. Howell reported that from "the good disposition manifest" in the discussions between Mr. Barclay and himself as to their powers and duties and as to the preliminaries, he was led to hope that they would

1 Mr. Sullivan to Mr. Pickering, Secretary of State, August 27, 1796, MSS. Dept. of State.

2 MSS. Dept. of State.

3 Mr. Howell to Mr. Pickering, Secretary of State, August 27, 1796, MSS. Dept. of State.

be able "to agree on a gentleman of respectability for the third commissioner" without resorting to the alternative of a lot.' On the 30th of August they agreed on Egbert Benson, whose name was suggested by Mr. Howell at Boston in the preceding June. "After a Weeks communication at Halifax," wrote Mr. Barclay, "the American Commissioner and myself agreed in the Choice of Egbert Benson of the City of New York Esq" as the third Commissioner-A Gentleman of undoubted Ability and Integrity, and who from being a near relation was brought up in my fathers family. I found it impracticable for Mr Howell the American Com' and myself ever to agree upon any other person, and that unless I joined in the appointment of Judge Benson, we must proceed to the unpleasant alternative of balloting for a third Commissioner. To this I am extremely averse, from a conviction that by this measure the question would be decided rather by lott, than on its merits--I was convinced of the Justice of His Majestys Claim, and the indisputable authorities that could be adduced to support it.To leave it therefore to a ballot, would be putting what I looked on as a certainty in hazard, a game I by no means conceived myself authorized to play.-It is true the American Commissioner gave me the names of two or three Gentlemen in England, one of whom he was willing should be opposed to Mr Benson, but these Gentlemen, I learned were warm minority men, and I did not conceive it probable they would leave their pursuits and cross the Atlantic, on such a question and under our nomination. Thus circumstanced I judged it most for His Majestys interest to give up the only possible objection to Mr Benson, that of his being an American, under the hope of having a cool, sensible, and dispassionate third Commissioner— His future conduct I trust will prove the propriety of my determination.” 2

Mr. Benson, who was a native of New York and a graduate of King's College, was at one time a judge of the supreme court of New York, of which State he was the first attorney. general. He was subsequently a judge of the circuit court of the United States. That his appointment as third commissioner was warmly approved by Mr. Sullivan, the agent of the

Mr. Howell to Mr. Pickering, Secretary of State, August 27, 1796, MSS. Dept. of State.

2 Rives's Correspondence of Thomas Barclay, 62, 63.