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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."

tration.

By the sixth article of the Treaty of Ghent Provision for Arbi- 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. 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.

Commissioners.

The commissioners held their first meeting First Meeting of at Albany on the 18th of November 1816, aud 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.)

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 recommend 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 assistant 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.

received a letter, dated the 14th of July, from Colonel Barclay, one of the commissioners under Article V., indicating acceptance of the proposal.' Owing to the delay in the arrival of the British astronomers, the joint meeting of the boards did not take place till June 1818. The determination of the point made by Andrew Ellicott, the American astonomer, in the preceding year was found to be correct.

British Agent.

At a meeting of the commissioners under Article VI. at Hamilton, Ontario, on June 1, 1818, John Hale appeared and presented a commission as British agent.

Changes in the
Board.

From 1819 to 1821 various changes occurred in the constitution of the board. In June 1819 Stephen Sewell resigned the position of secretary and was succeeded in it by Donald Fraser, whose place as assistant secretary was filled in the following June by the appointment of Dr. John Biggsby.

On the 28th of September 1819 Mr. Oglivy, the British commissioner, died at Amherstburgh, near Detroit, of a fever contracted among the St. Clair flats. He was succeeded by Anthony Barclay, of Annapolis, Nova Scotia, a son of Thomas Barclay, British commissioner under Article V. Anthony Barclay appeared and presented his credentials and oath of office at a meeting of the board on June 3, 1820, at Grosse Isle. At a meeting at Black Rock on May 7, 1821, Joseph Delafield appeared and presented a commission as agent of the United States, in place of Samuel Hawkins.

Agreement of Commissioners.

On the 12th of November 1821, at a meeting of the board in the city of New York, the surveyors stated that the maps of the survey along the whole line were ready for inspection. The agents respectively presented claims to the islands lying in the mouth of the Detroit River, the American agent to Bois Blanc, Sugar, and Story islands, and the British agent to the two latter. After holding several meetings in New York, the commissioners adjourned to Philadelphia, where they met on the 29th of January 1822. On the 5th of February Mr. Porter presented a statement of his views, and Mr. Barclay a reply; and they also prepared a joint statement, setting forth the differences between them. They then adjourned to meet on the

Rives's Correspondence of Thomas Barclay, 385.

3d of June at Utica, N. Y. On June 18, 1822, they reached an agreement. They held their last meeting under Article VI. on the 22d of June.

Principles of Decision.

In reaching their decision the commissioners proceeded without any fixed rule, except that the line should invariably be a water line, and therefore should not divide any island. But difficulties naturally arose not only out of questions touching the assignments of islands, but also out of questions touching the water communications and their navigation. At the sessions of the commissioners in the city of New York in the autumn of 1821 it was proposed to them that they should make with their final award a joint declaration to the effect that they had acted on the principle that the navigation of all the lakes, rivers, and water communications through which, by the treaty of 1783, the boundary was to pass should continue open and free to the citizens and subjects of the two powers, unaffected by the course of the line established by the award, it being understood that the proposition should receive the assent of the two governments before the declaration was made. It was believed that such a declaration would not only facilitate the conclusion of an award, but would also tend to prevent future difficulties as to the right of navigation. It seems, however, that while the proposition was acceded to by the President of the United States, the British minister at Washington, to whom it was presented, declined to sanction it on the part of his government, on the ground that such a declaration by the commissioners might serve to cast doubt on what was a matter of right; and the commissioners were left to trace the line in accordance with their views of the requirements of their commissions.

During their deliberations on the award, Mr. Porter proposed that the commissioners should be governed by certain rules, but Mr. Barclay declined to give them a "distinct and positive recognition," on the ground that cases might occur in the course of the proceedings in which the restrictions imposed by fixed rules might prove to be inconvenient.'

Award.

The award of the commissioners was as follows:

"The undersigned Commissioners, appointed, sworn and authorized, in virtue of the sixth article of the treaty of peace and

1 H. Ex. Doc. 451, 25 Cong. 2 sess. 6-10. Infra, p. 174.

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