26th of September and closed on the 29th; Mr. Austin opened on the following day and concluded on the 1st of October. But, in spite of the fact that their arguments and documents filled more than 2,000 folio pages, both the agents requested a further hearing and for that purpose asked for an adjournment till the following spring. It seems that neither the British commissioner nor the British agent thought a rejoinder necessary or desirable,' though Mr. Holmes had a somewhat contrary impression as to their inclination. Mr. Holmes understood Mr. Barclay to say that he had heard enough, but was unwilling to refuse a further hearing; and he was disposed to consider Mr. Barclay as "refusing, declining or omitting to act," if, after having declared that he had heard enough, he should still insist on affording an opportunity for further argument. It is probable that Mr. Barclay, perceiving Mr. Holmes's great anxiety to complete the business before the assembling of Congress, in which he considered that he could not take his seat without vacating his appointment as commissioner, was disposed to let this motive operate in favor of an agreement, and therefore did not himself betray any impatience, though, being doubtful "whether another commissioner would possess that candor and discrimination" which he had always observed in Mr. Holmes, he was desirous of concluding the affair with him. On the 8th of October, however, the commissioners determined that in their memorials and replies the agents had "done honor to themselves and justice to their respective Governments," and that it was "therefore inexpedient that they should be further heard."4

Agreement of the
Commissioners.

by Mr. Barclay."

On the following day the commissioners. reached an agreement. The steps by which it was brought about have been detailed

"In the discussion which took place between the Commis

1 Rives's Correspondence of Thomas Barclay, 389.

2 Mr. Holmes to Mr. Adams, Sec. of State, October 2, 1817, S. Ex. Doc. 97, 20 Cong. 2 sess. In this letter Mr. Holmes said there was no prospect that the commissioners would agree.

3 The Constitution of the United States, Article I. section 6, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

+ MSS. Dept. of State.

"Mr. Barclay to Lord Castlereagh, October 25, 1817, Rives's Correspondence of Thomas Barclay, 389.

sioner on the part of the United States and myself, in the interval from the 2nd to the 9th of October," says Mr. Barclay, "I endeavored to convince him, that by the express words used in the Grant of King James to Sir William Alexander in 1621, to wit, 'includens et comprehendens intra praedictas maris oras littorales ac earum circumferentias, a mari ad mare, omnes terras continentes cum fluminibus, torrentibus, sinibus, littoribus, insulis, aut maribus jacentibus prope aut infra sex leucas ad aliquam earundem partem ex occidentali, boreali, vel orientali partibus orarum littoralium et praecinctuum earundem, all the Islands in the Bay of Passamaquoddy and the Island of Grand Manan in the Bay of Fundy were included within the Limits of that Grant. For that although a line drawn from Cape St. Marys (one of the boundary lines described in the Grant to Sir William Alexander) to the River St. Croix would not include all the Islands within it; still a parallel Line six leagues distant to the South West would embrace themand that the Words 'sex leucas' referred to 'earum circumferentias' and 'Praecinctuum earundem,' and not to oras littorales' nor 'orarum littoralium.'-That the Line from St. Marys Bay to the River St. Croix was the 'circumferentias' and the 'praecinctuum' mentioned in the Grant, and that the 'sex leucas' was to be extended from that Line and not from the Coasts or Shores of Nova Scotia.-To this the American Commissioner replied, that it was unnecessary for him and me to enter upon the construction given by me on the Words of the Grant, as the Crown had decided it repeatedly in the Commissions to the Governors of Nova Scotia, wherein the Limits of Nova Scotia were defined; and he referred to the Commission to Montague Wilmot Esq. in 1763, wherein all Islands on the North and East within six Leagues of the Coasts, are declared to be within the Limits of Nova Scotia, and to the Southward all Islands within forty leagues of the Coast, but that to the Westward no mention was made of Islands in the Commission to Mr. Wilmot,

In the print of the grant laid before the King of the Netherlands by the American agents under the convention of 1827 this passage is the same, except as to some unimportant abbreviations of words which are fully set out in Mr. Barclay's quotation. The passage translated into English reads, "including and comprehending within the aforesaid seashores and their circumferences, from sea to sea, all lands and continents with the rivers, streams, bays, shores, islands or seas lying near or within six leagues of any part of the same on the western, northern, or eastern parts of the said shores and precincts."

nor in any other of the Commissions to the Governors of Nova Scotia; if, therefore, he were to allow this as an accidental omission, I could not in justice require him to admit more than was given on the North and East, which would be all Islands within six leagues of the Western part of the Coast of Nova Scotia, and that this would comport with the Words of Sir William Alexanders Grant 'infra sex leucas ad aliquam earundem partem ex occidentali, boreali vel orientali partibus' &c &c &c,but that the six Leagues must be measured from the Shores and Coasts, and not from the circumferences of the Boundaries.-I suggested that the Commissions were generally penned in haste, by Clerks in the public offices, and intended merely as instructions to Governors, not as acts which were to bind his Majesty on other points and the foreign powers; because, if Declarations contained in such Commissions could not bind foreign Powers, it was unreasonable, that the Power making such Declarations and possibly with private views, confined to its own Subjects, should be bound thereby. In support of this Doctrine, I stated several cases, and in some measure brought the American Commissioner to think there was not so much weight in his objection, as he originally imagined. I assured, and endeavored to convince him, that from the Evidence before the Board, it was manifest, that all Islands in question were included. in the Grant to Sir William Alexander, and consequently ap pertained to His Majesty; and called on him to unite with me in decision to that effect. This he of course declined; remarking that such a decision would deprive the United States of Moose Island and the two adjoining small Islands named Dudley and Frederick, which had been decided to them by the Convention or Treaty in 1803 and by the Supplemental Treaty in 1807, neither of which it was true had been ratified on the part of the United States, but that they were evidence, that Great Britain either considered these Islands to belong to the United States, or was willing to acknowledge them as such, provided the United States would relinquish claim to all the other Islands in the Bay of Passamaquoddy. He added that although he was determined not to execute a decision whereby all the Islands in question were to be adjudged to belong to His Majesty, yet he was willing to come to a determination which should comport with the principles agreed upon by Earl Liver pool, then Lord Hawkesbury, and Mr. King in 1803, and by Lord Holland and Lord Auckland and Mr. Monroe and Mr.

Pinkney in 1807. That if I would not consent to this, he was ready to report, jointly or separately, stating the points on which we differed, and the grounds on which our respective opinions had been formed, and to leave it to the two Governments to refer the report to some friendly Sovereign or State for decision,-which decision could not possibly be more adverse to the claims of the United States and might be more favorable, than that I had proposed. That where nothing more could be lost, and something might be gained, it was his duty to refer the question to the Tribunal pointed out by the Treaty in the event of the Commissioners not coming to a decision. In adjourning for that day (the 5th of October) I communicated the substance of the conferences, which had taken place between the Commissioner on the part of the United States and myself, to His Majesty's Agent. His opinion coincided with mine in the following particulars.-That in the event of the report being referred to a friendly Sovereign, it would naturally be placed by him, in the hands of one of His Ministers, or Law officers, with directions to examine the reports, and to recommend the decision which ought to be made.-That it was probable that either from want of time, or other cause, the attention necessary to form a correct, opinion might not be given, or that the Arguments in the report might not be fully comprehended; and that such Sovereign being called upon by both nations, in the character of a Friend, would probably adopt the Terms agreed upon (though not ratified) by the two nations, in the Convention of 1803 and supplemental convention in 1807. That if this should be the Line pursued by such friendly Power, still it would remain a matter of doubt to whom it would decide the Island of Grand Manan to belong.That this Island was of more value to His Majesty, in point of Territory, than all the Islands in the Bay of Passamaquoddy; and in a military and naval Point of View of much greater importance.-That it commands the North West Side [of] the Bay of Fundy, is immediately opposite that part of the American Coast, where the waters which pass into and out of the Bay of Passamaquoddy at a place called West-quoddy passage and that His Majesty by being possessed of this Island, would have it in his power, in the event of a War, to prevent American Privateers from sheltering themselves in that Passage and to protect the Province of New Brunswick and that part of Nova Scotia which lies in the Bay of Fundy

That unless the six leagues should be measured from the line described in the Grant to Sir William Alexander, from St. Marys Bay to the River St. Croix, this Island would not be comprehended within the Limits of Nova Scotia, but only a small part of it,-and that the friendly power might possibly decide in favor of the United States, or that the small portion of it belonged to His Majesty, and the remainder to those States-that either event would be extremely prejudicial to His Majesty's Interest-that in the number of unpleasant consequences which would attend a reference to a friendly Sovereign or State, independently of the uncertainty of the decision, are the time it would occupy, and the expense attending such an appeal.

"His Majesty's Agent further agreed with me, that Moose Island is of no moment to His Majesty. It had never been granted by him to any of his Subjects: on the contrary the State of Massachusetts had granted it to citizens of the United States-admitting that the friendly Sovereign should decide, that this Island did belong to His Majesty, the present Possessors would, on taking the Oaths of Allegiance, be confirmed in their titles to the Lands they held, while their sentiments would probably remain favorable to the Interests of the United States, and from their having access to His Majestys other Territories, would in time of War have it in their power to communicate information to His Majesty's Enemies. That this Island lay within less than half a mile of the American Shores, and consequently was at any moment liable to be taken possession of, unless defended by strong works, and a competent Garrison-That it was not worth this expense, nor, indeed either in an agricultural point of view, or for a fishery, of any value to the Crown.-That Frederick and Dudley Islands, adjacent thereto, were merely Rocks in the Bay of Passamaquoddy, extremely small and incapable of improvement, or indeed, of being made useful in any manner whatever. If an amicable decision could be effected by giving Moose Island with Dudley and Frederick Islands, its natural appendages to the United States, His Majesty's Agent thought it would be an advantageous adjustment on the part of His Majesty, and infinitely preferable to leaving the question to be decided by a friendly Sovereign. Accordingly when I met the American Commissioner on the 6th day of October, I stated to him, that I had reflected on what he had suggested, and notwithstand