report under their hands and seals, decide to which of the two contracting parties the several islands aforesaid do respectively belong, in conformity with the true intent of the said treaty of peace of one thousand seven hundred and eighty-three. And if the said Commissioners shall agree in their decision, both parties shall consider such decision as final and conclusive. It is further agreed that, in the event of the two Commissioners differing upon all or any of the matters so referred to them, or in the event of both or either of the said Commissioners refusing, or declining, or wilfully omitting to act as such, they shall make, jointly or separately, a report or reports, as well to the Government of His Britannic Majesty as to that of the United States, stating in detail the points on which they differ, and the grounds upon which their respective opinions have been formed, or the grounds upon which they, or either of them, have so refused, declined, or omitted to act. And His Britannic Majesty and the Government of the United States hereby agree to refer the report or reports of the said Commissioners to some friendly sovereign or State, to be then named for that purpose, and who shall be requested to decide on the differences which may be stated in the said report or reports, or upon the report of one Commissioner, together with the grounds upon which the other Commissioner shall have refused, declined or omitted to act, as the case may be. And if the Commissioner so refusing, declining or omitting to act, shall also wilfully omit to state the grounds upon which he has so done, in such manner that the said statement may be referred to such friendly sovereign or State, together with the report of such other Commissioner, then such sovereign or State shall decide ex parte upon the said report alone. And His Britannic Majesty and the Government of the United States engage to consider the decision of such friendly sovereign or State to be final and conclusive on all the matters so referred."1

Appointment of a Under this article the King of Great Britain Commissioner by on September 4, 1815, appointed as commisGreat Britain. sioner Thomas Barclay, who had served in a similar capacity under Article V. of the Jay Treaty. It ap pears, however, that the commission of Mr. Barclay did not reach New York, where he then held the post of British consulgeneral, till the 7th of August in the following year.2

As commissioner on the part of the United Appointment of a States, President Madison on January 16, Commissioner by 1816, appointed John Holmes, a resident of Massachusetts, but of that part of the State which was soon afterwards to become the State of Maine.

the United States.

Article VIII. of the treaty contains certain provisions as to procedure. 2 Rives's Correspondence of Thomas Barclay, 370,

After having served for several terms in the legislature of Massachusetts, Mr. Holmes was in 1817 elected to Congress. On the admission of Maine as a State, in 1820, he was elected to the United States Senate, where he served till 1833.1

On the 4th of September 1815 Lord CastleInstructions of the reagh dispatched to Mr. Barclay, in relation to the question under the fourth article, the following instructions:

British Commissioner.

"With regard to the regulation of your conduct in bringing to a favorable issue the first question namely, whether the sev eral Islands in the Bay of Passamaquoddy and in the Bay of Fundy belong of right to the United States or to Great Britain; it may be necessary that you keep in mind (altho' in deciding upon it you are solely to be led by the Evidence that will be adduced in favour of the Claims of other countries [sic]) that His Majesty's right to those Islands is supposed to be founded on the Second Article of the Treaty of Peace of 1783 which excepted from the line 20 leagues from the line of Coast, by which it was then agreed to fix that side of the Boundary of the United States, such Islands as now are or heretofore have been within the Limits of Nova Scotia.-And that the Islands in question did come within the Limits of that Province, will be proved not only from the Circumstance of the Jurisdiction which the Government of Nova Scotia always was in the habit of exercising over the Inhabitants up to the Peace of 1783, but more forcibly from the fact that the original Patent or Grant (an extract of which I enclose) of the said Province made by King James the 5th to Sir William Alexander in 1621, after tracing the Boundaries of the United States (sic) in it's circumference proceeds to include in it all Islands &c., within Six Leagues of any part of the circumference.

"It cannot also have escaped your recollection that in the discussion in which you were engaged with the United States in 1796 and which terminated in your fixing the mouth of the River St. Croix at Joes Point, the point now at issue was in some degree decided, a reference to the Proceedings of the Commis. sioners at that period will prove that the objection made to that decision on the part of the American Agent was that he (sic) conferred upon Great Britain the possession of the very Islands now under dispute, and he on that ground argued tho' ineffectually the impropriety of the decision itself."

In acknowledging the receipt of these inBritish Commission- structions Mr. Barclay, while expressing the er's Doubts as to opinion that the principles on which they were founded were, with respect to the islands in

Grand Menan.

Rives's Correspondence of Thomas Barclay, 357; Willis's History of the Law, the Courts, and the Lawyers of Maine, 275.

Passamaquoddy Bay, perfectly correct and such as could not be controverted, yet disclosed an apprehension that it would be "difficult for His Majesty's Agent to support with equal evidence His Majesty's claim to the Island of Grand Manan in the Bay of Fundy, an island of far more national importance, than any of the others."

Alexander.

The grant of Nova Scotia to Sir William Grant of Nova Scotia Alexander in 1621, to which Lord Castleto Sir William reagh referred, is printed in the original Latin in the evidence accompanying the statement submitted on the part of the United States to the King of the Netherlands under the convention of 1827, to which we shall refer hereafter. By this grant there were conveyed under the name of Nova Scotia to the grantee, his heirs or assigns in inheritance, "all and singular the lands, continents and islands situate and lying in America within the headland or promontory commonly called Cape Sable, lying near 43° north latitude, or thereabout; from which promontory stretching westwardly along the seashore to the roadstead of Saint Mary, commonly called St. Mary's Bay, and thence toward the north by a straight line crossing the entrance or mouth of that great ship road which runs into the eastern tract of land between the countries of the Souriquois and the Etchemins to the river commonly called St. Croix, * ; 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." The "great ship road" referred to is the Bay of Fundy. A line drawn across its mouth from St. Mary's Bay to the mouth of the river decided under Article V. of the Jay Treaty to be the true St. Croix, just touches the island of Grand Menan.

At this point two questions arose: First, Did the words "within six leagues of any part of the same" only mean within six leagues of the "seashores," or did they also mean within six leagues of the "circumferences" and "precincts," so as to include islands such as Grand Menan, lying less than six leagues to the west of the line drawn from St. Mary's Bay to the River

1 Rives's Correspondence of Thomas Barclay, 371.
2 Chapter IV

St. Croix? And second, Were the limits mentioned in the Alexander grant the true limits of the province?

Scotia.

The language by which the boundary was Commissions of Gov- defined in this grant was not adhered to in the ernors of Nova commissions given to the British governors. In the commission to Montague Wilmot of November 21, 1763, it was declared that although the province "hath anciently extended and doth of right extend" to the westward "as far as the river Pentagonet or Penobscot, It shall be bounded by a Line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth of the River St. Croix," etc. Nothing was said as to the islands westward of this line. In the commission to Lord William Campbell of August 11, 1765, the province was "bounded on the Westward by a line drawn from Cape Sable across the entrance of the Bay of Fundy to the mouth of the River St. Croix

to the Eastward by the said Bay (of Chaleurs) and the Gulph of St. Lawrence to the cape or promontory called Cape Breton in the Island of that name including that Island the Island of St. John and all other Islands within six Leagues of the coast and to the Southward by the Atlantick Ocean from the said cape to Cape Sable," etc.

This restriction to the eastern "coast"

of the provision including all islands within six leagues may also be found in the commission to Wilmot, to which we have just referred. The same definitions of the boundary were preserved in the commission to Governor Francis Legge of July 22, 1773. They do not comprehend the island of Grand

Menan.

It seems that the governor and council of Nova Scotia granted a reservation of the island to Sir William Campbell in 1773 till the King's pleasure should be known.

Appendix 15, Statement of the United States before the King of the Netherlands, 1829; printed, but not published.

Rives's Correspondence of Thomas Barclay, 373. In a letter to Lord Castlereagh of August 12, 1816, Mr. Barclay, referring to the commissions of the provincial governors, said: "From these commissions it would appear that the Islands within six leagues of the coast are confined to the coast on the Eastern side of the Province of Nova Scotia. The Commissions refer to Islands on the East and South sides of the Province, but are silent with respect to those on the West Side. I attribute this to inattention in those who framed the commissions. At that period it was not perhaps considered necessary to be critically particular in such descriptions in commissions to Governors, the Limits and appendages of the respective provinces had been declared, but had never been surveyed and

Commission.

Owing to adverse winds and to calms, which Organization of the delayed the commissioners at Portland, they did not reach St. Andrews till the 22d of September 1816, six days later than the day they had appointed for their first meeting. They held their first session on the 23d of September, when they exhibited their commissions and took an oath of office, which was administered to them by Hugh Mackay, esq., one of His Majesty's justices of the peace and of the inferior court of common pleas for the county of Charlotte, in the province of New Brunswick.'

The commissioners appointed as their secreSecretary to the Com-tary Anthony Barclay, a son of the British commissioner, at a salary of five hundred

mission.

pounds sterling a year.

As agents there appeared on the part of the American and British United States James Trecothick Austin, of Agents. Massachusetts, and on the part of Great Britain Ward Chipman, who acted as agent for that government under Article V. of the Jay Treaty. Austin was a leading member of the bar of Massachusetts, and from 1832 till 1843 was attorney-general of the State. His commission as agent was given by the President of the United States, who appointed him by and with the advice and consent of the Senate on the 11th of April, 1816. When Mr. Chipman apdefined by actual measurement. His Majesty's Ministers could not have intended to take these Islands from the jurisdiction of Nova Scotia without either erecting them into a distinct colony, which would have been ridiculous, or annexing them to the, then, Province of Massachusetts. Neither of these was the case, it therefore follows that they remained part or parcel of Nova Scotia under the Grant to Sir William Alexander. Besides it required express words to take those Islands formerly declared to appertain to Nova Scotia, from it: and your Lordship will presently perceive that on a nearly similar occasion in contracting the Western Limits of Nova Scotia express words were used in the commission to Governor Wilmot." (Id.374.)

The oath was as follows: "You do solemnly swear, impartially to examine and decide the claims to be submitted to you, under the Fourth article of the Treaty of Peace and Amity concluded at Ghent, on the 24th day of December 1814, between His Britannic Majesty and the United States of America, according to such evidence as shall be laid before you on the part of his said Britannic Majesty, and of the said United States respectively, So help me God." The certificate of the due administration of this oath, under the hand and seal of the justice, was filed with the proceedings of the commissioners.