the islands in the said Rivers Kedgewick and Restigouche to its mouth at Dalhousie." In explanation of this recommendation the commissioners stated that the territory west of the due-north line, and belonging strictly to neither province, comprised 4,400 square miles, of which the proposed boundary gave 2,300 to New Brunswick and 2,100 to Canada, while of the territory north of the Restigouche strictly belonging to New Brunswick 2,660 square miles were assigned to Canada. The fiefs of Temiscouata and Madawaska, though strenuously contended for by Canada, fell principally to New Brunswick. The commissioners stated that the inhabitants of these seigniories were "few, not exceeding twenty families of poor, humble settlers."

Interprovincial
Arbitration.

The executive council of New Brunswick advised that the recommendation of the commissioners should be "received as an equitable settlement of the question so long pending;" but, as the executive council of Canada found themselves "unable to recognize" its "justice or equity," the British Government suggested that the matter be referred to arbitration. This suggestion was accepted, and it was agreed that the arbitration should be held in London. As arbitrators New Brunswick and Canada respectively selected Dr. Travers Twiss and Thomas Falconer, esq., and these two chose as third arbitrator Judge Stephen Lushington, of the admiralty court. On the 17th of April 1851 Messrs. Lushington and Twiss, Mr. Falconer dissenting, rendered an award, which was duly carried into effect. By this award New Brunswick is bounded on the west by the boundary of the United States as traced under the treaty of 1842, "from the source of the St. Croix to a point near the outlet of Lake Pech-la-wee-kaa-co-nies, or Lake Beau." From this point the province is bounded by a straight line to a point a mile south of the southernmost point of Long Lake; thence by a straight line to the southernmost point of the fiefs Madawaska and Temiscouata, and along the southeastern boundary of these fiefs to their southeast angle; thence by a meridional line northward till it meets a line running east and west, and tangent to the height of land dividing the waters flowing into the River Rimouski from those tributary to the St. John; thence along this tangent line eastward till it meets another

1 Br. and For. State Papers, XL. 850; XLIV. 685.

meridional line tangent to the height of land dividing waters flowing into the River Rimouski from those flowing into the Restigouche River, thence along this meridional line to the forty eighth parallel of latitude, along that parallel of latitude to the Mistouche River, and down the center of the stream of that river to the Restigouche; thence down the center of the stream of the Restigouche to its mouth in the Bay of Chaleurs, and thence along the middle of that bay to the Gulf of St. Lawrence. By an act of Parliament of August 10, 1857, it is explained that the "River Mistouche" in the award shall be taken to be the stream which crosses the forty-eighth parallel of latitude and from thence flows into the Restigouche, and which is otherwise called the "Patapedia."1

The line thus established is substantially the same as that which was recommended by the royal commissioners in 1848, except that it gives the fiefs of Temiscouata and Madawaska to Canada. It was "founded," said Judge Lushington, in a statement of the grounds of the award, "as far as possible upon the principle of possession, a principle laid down by Lord Hardwicke in the Baltimore case as the true principle to govern all questions of disputed boundary."

Br. and For. State Papers, XLVII. 523. See, for the joint report of Commissioners Smith and Estcourt on the Northeastern Boundary, Richardson's Messages and Papers of the Presidents, IV. 170.

5627-11

CHAPTER V.

BOUNDARY THROUGH THE RIVER ST. LAWRENCE AND LAKES ONTARIO, ERIE, AND HURON: COMMISSION UNDER ARTICLE VI. OF THE TREATY OF GHENT.

Course of the Boundary.

Having traced the settlement of the eastern and northern boundary of the United States from the Bay of Fundy to "the point where the forty-fifth degree of north latitude strikes the river Iroquois or Cataraquy," we now proceed to extend the line from that point westward. By the treaty of 1783 the boundary from the point in question to Lake Superior is declared to be "along the middle of said river (Iroquois or Cataraquy) into Lake Ontario, through the middle of said lake until it strikes the communication by water between that lake and Lake Erie, thence along the middle of said communication into Lake Erie, through the middle of said lake until it arrives at the water communication into Lake Huron, thence through the middle of said Lake to the water communication between that lake and Lake Superior."

Provision for Arbitration.

By the sixth article of the Treaty of Ghent it was recited that "doubts have arisen what was the middle of the said river, lakes and water communications, and whether certain islands lying in the same were within the dominions of His Britannic Majesty or of the United States;" and in order that these doubts might be finally decided, it was provided that they should be referred to two commissioners, to be appointed, sworn, and authorized to act, except as otherwise specified, in the same manner as the commissioners under Article V.1 It was further provided that the commissioners should meet in the first instance at Albany, in the State of New York, and should have power to adjourn

1 Supra, p. 70.

to such other place or places as they should think fit; that they should, "by a report or declaration, under their hands. and seals, designate the boundary through the said river, lakes and water communications, and decide to which of the two contracting parties the several islands lying within the said rivers, lakes and water communications, do respectively belong, in conformity with the true intent of the said treaty of one thousand seven hundred and eighty-three," which designation and decision the parties agreed to consider as final and conclusive; and that, in the event of the two commissioners differing, or both or either of them refusing, declining, or willfully omitting to act, such reports, declarations, or statements should be made by them, or either of them, and such reference to a friendly sovereign or state should take place, as were prescribed in the fourth article of the treaty. Various matters of procedure were regulated by the eighth article.

American Commis

sioner.

Under the sixth article President Madison appointed as commissioner on the part of the United States Peter B. Porter, of Niagara County, New York. His commission, issued by and with the advice and consent of the Senate, bore date January 16, 1816. His oath of office was taken before Smith Thompson, chief justice of New York, whose official character was certified by the governor of the State.

British Commis

sioner.

On the part of Great Britain George III. appointed as commissioner John Ogilvy, of Montreal. His commission bore date June 30, 1816. His oath of office was taken at Quebec, before Jonathan Sewell, chief justice of the province of Lower Canada.

The commissioners held their first meeting First Meeting of at Albany on the 18th of November 1816, and Commissioners. as the board had not been organized they confined themselves to the arrangement of preliminary matters. Besides presenting their credentials and oaths of office, they adopted resolutions as to the employment of surveyors, boatmen, and other persons necessary to be employed in the

"Peter Buel Porter was the founder of the well-known family who owned so much of the land about Niagara Falls. He was a native of Connecticut, was for two terms a member of Congress, and served with some credit in the war of 1812. He was active in promoting the Erie Canal, and died in 1844. ' Rives's Correspondence of Thomas Barclay, 357.)

2 Except where otherwise indicated, this narrative is based on the MS. journal of the commission in the Department of State.

determination of the boundary. It was also resolved that each commissioner should name, with the approbation of the other, a person to serve either as secretary or as assistant secretary, and that it should be determined by lot in which capacity the two persons so named should respectively serve. In this arrangement the commissioners were influenced by the belief that it would greatly conduce to the expedition as well as the accuracy of their operations, and they agreed to recom mend to their respective governments that both persons should receive the same pay and emoluments. In order to prevent unnecessary delay it was resolved that the next meeting should be on the spot where active duty was to commence, and the commissioners accordingly adjourned to meet at St. Regis on the 10th of the following May.

ries.

The commissioners met at St. Regis on the Selection of Secreta- 23d of May 1817. Mr. Oglivy proposed Stephen Sewell, of Montreal, for secretary or as sistant secretary, as should be determined by lot, and Mr. Porter in like manner proposed Maj. Donald Fraser. The lot resulted in the appointment of Mr. Sewell as secretary and of Mr. Fraser as assistant secretary. Each was allowed an annual salary of $2,200. On the 26th of May they presented their oaths of office, taken before a Canadian justice of the peace. Oaths in a form prescribed by the commissioners were in like manner taken by the surveyors and assistant surveyors.

At the meeting on the 26th of May Samuel American Agent. Hawkins appeared and presented a commission issued by the President of the United States, by and with the advice and consent of the Senate, appointing him as agent on the part of the United States.

Beginning of the
Line determined.

At a meeting held at Point Amity on the 29th of May it was resolved that the board would proceed to ascertain the point at which the forty-fifth parallel of north latitude, continued westward from the Connecticut River, strikes the River Iroquois or Cataraquy. As this was a point in common under Articles V. and VI., it being the place where the lines to be run under the two articles connected, the commissioners under Article VI., at a meeting at Point Peace, June 3, 1817, directed their secretary to address a letter to the commissioners under Article V., proposing a meeting of the two boards at St. Regis for the purpose of determining the point in question by joint action. On the 8th of August the commissioners under Article VI.