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.

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 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 instructious 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 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 7 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 CommissionerHis future conduct I trust will prove the propriety of my determination."

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.

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

United States, is shown by the following letter to John Jay, who was then governor of the State of New York:

"HALIFAX, 30th August, 1796.

"SIR: The controversy respecting that part of the boundary between the United States and the Dominions of his Britannic Majesty, which is on the river St. Croix, is now a matter of some moment. The Commissioners have proceeded with that good humor and candour on the subject which seemed to promise a happy & amicable termination of the dispute. Instead of casting lots, they have taken the first idea of the Treaty of November 1794, and have elected a third Commissioner; Judge Benson is the only gentleman in whom they could unite.

"They have sent him a commission by this conveyance, and a vessel to bring him on. I earnestly hope that your Government will allow him to attend upon it, and that all his friends who wish the late Treaty with Great Britain to be carried into effect in such a manner as to assure the peace and happiness of our country will use their influence with him to accept the appointment. A letter which I have written to him by this conveyance will I believe satisfy him that the task will not be so arduous as he may at first imagine. Should he decline the process, the consequence will inevitably be, that two men will be put in the box on whom no confidence will be placed by the other side, the consequence of which is easily seen without any explanation. I am Sir with great respect, "Your Excellency's most obedient and most humble servant, "JAS. SULLIVAN.

"His Excellency Governor JAY."

of the Commission.

After the selection of a third commissioner

Formal Organization the agents proceeded to Passamaquoddy Bay to institute the surveys. They were soon followed by the two commissioners, who, in order to avoid compelling the agents to attend at Halifax, adjourned to St. Andrews, where they notified Mr. Benson to meet them on the 3d of October. On the 4th of October the three commissioners, having met at that place, were duly sworn, according to the provisions of the treaty, before Robert Pagan, a justice of the court of common pleas for the county. They then appointed Edward Winslow, of Fredericton, New Brunswick, but formerly of Plymouth, Massachusetts, as their secretary, and received. the memorials of the agents, Mr. Sullivan claiming the Magaguadavic and Mr. Chipman the Schoodiac.

Investigation of
Claims.

"The 5th" [of October], says Mr. Barclay, "we made an attempt to proceed up the River Scoodiac claimed by the Agent of His Majesty as the true St. Croix, but the Wind failing we were compelled to return to St. Andrews; after which the board met, confirmed the surveys commenced under the mutual agreement of the Agents and taking the future operations of the surveyors under our control established rules and orders for their direction and government; ascertained their pay per day and that of the chainmen and laborers under them &c. &c. On the 6th the Commissioners attended by the Agents went to view the mouth of the River Magaguadavic claimed by the American Agent as the St. Croix intended in the treaty of Peace and the Island which he said had been named by the Sieur de Monts in 1604, Isle de St. Croix. The 7th we had a view of the Isle de St. Croix in the River Scoodiac as shown us by His Majestys Agent with the small Island in its front and as much of the River as he said he conceived necessary to be seen to evince that the Islands and River corresponded with the description given by L'Escarbot and Champlain french Historians, who attended the Sieur de Monts in his Voyage to that part of North America in 1604, and on our return we examined under oath in the Evening a number of Indians produced on the part of the united States-On the 8th the board established rules and regulations for authenticating Records and other public documents to be given in Evidence, with several other necessary orders and resolutions, particularly one directing a survey to be made of the bay of Passamaquoddy, the Islands therein, the Brooks and Rivers that discharge themselves into it and all the Mountains, high lands or head lands which present themselves to view in proceeding up the bay to either of the rivers in question, representing their Shapes and appearances respectively as they make or appear in proceeding to and up each of the Rivers in question.

"Having examined the Surveyors as to the probable period when their surveys would be completed and finding they could not be effected until late the next Autumn and the Agents having stated by a joint memorial that it would be out of their power to deliver in the Arguments on which their claims were founded until they were possessed of these Surveys, the board adjourned to the second Tuesday in August next, then to meet at Boston in the State of Massachusetts for the pur