Appointment of

Meanwhile each government had appointed an agent to represent it before the commisAmerican Agent. sioners. On the part of the United States the agent chosen was James Sullivan, a citizen of Massachusetts, and a native of the District of Maine, of which he was the historian. His commission bears date May 21, 1796. A lawyer by profession, Mr. Sullivan held numerous posts in the public service, being at divers times a member of the general court of Massachusetts, a member of the committee of public safety, a judge of the supreme judicial court, a member of Congress, and governor of his native commonwealth. He was also president of the Historical Society of Massachusetts. At the time of his appointment as agent of the United States before the St. Croix Commission he was attorney-general of Massachusetts. He applied himself to his new duties with great diligence.

History of the District of Maine, by James Sullivan, Boston, 1795. 2 Mr. Pickering, Secretary of State, in his instructions to Mr. Sullivan, said: "Your researches as the historian of the District of Maine, your reputation as a lawyer, and your official employment as the attorney-general of Massachusetts, the State directly and most materially interested in the event, have designated you as the agent of the United States to manage their claim of boundary where their territory joins that of His Britannic Majesty, in his province of New Brunswick, formerly a part of his province of Nova Scotia. You are apprised that the question to be examined and decided is stated in the fifth article of the treaty of amity, commerce, and navigation between the United States and His Britannic Majesty. The quantity of land the title of which depends on this decision is an object so interesting as to demand an accurate and thorough investigation of the claims of the two nations. It is supposed that you are already possessed of important documents concerning them; but it is desirable that you should diligently inquire and search for any others which public records or other repositories, public or private, may have preserved. The pending decision is to be final. Great industry, therefore, will be necessary to collect, and much diligence and ability required to arrange and enforce, the evidence in support of the claim of the United States. Besides written documents, it is possible that living witnesses, if carefully sought for, may yet be found whose testimony may throw much light on, if not positively establish, our claim. To obtain these, if they exist, as well as all written documents, the President relies on your diligent research and inquiry; and in the application of them to support the interests of the United States he assures himself of the utmost exertion of your ability." (Amory's Life of James Sullivan, I. 307, 308.) "Two of the council, two of the senate, and one of the most eminent of the law counsel in the State of Massachusetts," says Mr. Barclay, "were assigned to assist Mr. Sullivan in collecting documents and evidence, and in preparing the case

The agent of Great Britain was Ward ChipAppointment of man, who also was a native of Massachusetts. British agent. Like Mr. Barclay, he had espoused the royalist cause in the Revolution, had served in the British army, and at the close of the war had sought refuge in Nova Scotia, taking up his residence in St. John, then in Nova Scotia, but which was later to be included in New Brunswick. At the time of his appointment as British agent before the St. Croix Commission he was solicitor-general of New Brunswick, of which province he was afterwards chief justice and president.'

American Commissioner Proceeds to Halifax.

On the 12th of August 1796 Mr. Howell, Mr. Sullivan, Mr. Webber, professor of astronomy at Harvard College, and other members of the American party sailed from Boston for Halifax in an American sloop called the Portland Packet. As no commercial intercourse was at the time allowed between

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and arguments on this important question." (Rives's Correspondence of Thomas Barclay, 67.) Amory, in his Life of Sullivan, I. 322, says that "Colonel Pickering procured for Sullivan many valuable books, and among others, after sending for them without success to Europe, borrowed from the library of Jefferson copies of Champlain and L'Escarbot." 1 Burrage's "St. Croix Commission," read before the Maine Historical Society February 6, 1895. Mr. Barclay, in a letter to Lord Grenville, of August 30, 1796, says: "I have industriously exerted myself since I had the honor of receiving his Majesty's Commission in procuring for the Consideration of Mr. Chipman His Majesty's Agent such papers proofs and documents as could throw light upon the subject in controversy, but I find his zeal and industry in the fulfillment of the duties of his appointment, and his thorough knowledge of the subject will relieve me from every apprehension that anything will be omitted in procuring or arranging the evidence in support of the Claims of the British Government which can in any degree tend to elucidate their justness or force." (Rives's Correspondence of Thomas Barclay, 58.) Burrage, in his "St. Croix Commission," page 5, says that Mr. Chipman, in the collection of evidence, had "the assistance of Phineas Bond, the British Consul at Philadelphia; Robert Pagan, a judge of the Court of Common Pleas (of New Brunswick), and others." Among the "and others" there seems to have been a person who was able to supply the British minister and British consul at Philadelphia, in the early stages of the business, with copies of papers on which the United States relied, and probably with a copy of its claim. This person and the papers furnished by him are referred to in several letters of Mr. Bond, the British consul, to Mr. Barclay. The latter, however, cautioned Bond against him, saying that he was "a man of duplicity and not to be trusted." Bond feebly excused him, saying that the "person" referred to did not, in the present instance, conceive that he betrayed any confidence, but, on the contrary, "professed that Truth alone was the

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.1

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. 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." It does not appear that the subject was mentioned again.

Question as to Legal
Constitution of
Commission.

On the 26th of August Messrs. Barclay and Howell requested the agents to attend and advise them as to how far the two commissioners 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 meeting 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 conclnsive, 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.