From Timothy Pickering
Philadelphia July 16. 1796.
Mr. Howell,1 the Commissioner for settling the St. Croix boundary, has been here this week, & started the following questions.
1. “How far will it be proper for Mr. Howell to use his discretion in refusing to draw lots for the third Commissioner, in case the British Commissioner2 shall persist in proposing a gentleman on his part who may be, in Mr. Howell’s opinion, not an indifferent person?”3
2. “In case inhabitants of Massachusetts are thought objectionable on the part of the British, will not all inhabitants of New Brunswick & Nova Scotia be also, if not equally, objectionable?”
3. “Whether the authority of the commissioners can be legally executed, unless the three commissioners sign the declaration required of them by the treaty?” In other words, Whether if any two of the Commissioners agree, they can finally decide the question?4
I had previously received from Mr. Sullivan (the agent for the U States)5 a letter stating the interview between Mr. Howell & Mr. Barclay at Boston; in which it appeared that Mr. Barclay considered the appointment of a Commissioner from Massachusetts would be improper, because there was not one from New Brunswick. Yet (Judge Sullivan remarks) Nova Scotia, where Mr. Barclay resides, may be considered as a party, seeing he said that he could not take any steps towards the appointment of a third commissioner, until he consulted Sir John Wentworth, the Governor of that province, on the subject, as well as the governor of New Brunswick.6 Judge Sullivan further remarks, “that the lands in New-Brunswick he considers as owned by proprietors in Nova Scotia, as those in Vermont are by proprietors in New-Hampshire; and that therefore Commissioners in New-Brunswick would be as eligible as in Nova-Scotia.”
But the most unpleasant part of Judge Sullivan’s information is, “That though the third commissioner is to be nominated and chosen or drawn by the two original commissioners, Mr. Barclay does not consider himself as acting judicially in the business, or as equally responsible to both nations on the point; but considers the appointment as a matter of negociation between the parties, and that any advantages which may be gained will be honourable.” Mr. Howell also informed me that Mr. Barclay did avow this extraordinary opinion: and if it were a just one, as founded on the treaty, it had been better to decide the question by the cast of a die: but ’tis so repugnant to the oath which each commissioner is to take, it is impossible that it should be the true construction of the article. I suppose it was chiefly the avowal of this principle, on the part of Mr. Barclay, that led Mr. Howell to propose his first quere: for while he should propose for the decision of the choice of the third commissioner by lot, a gentleman belonging to another state than Massachusetts, in order to obtain a disinterested judge, it would be with extreme repugnance that he would admit the name of an inhabitant of New Brunswick or Nova Scotia, on account of the direct interest of the former, & the probable interest of the latter, as above suggested by Judge Sullivan; especially as Nova Scotia already furnishes one of the Commissioners. If then it will consist with good faith to refuse to draw lots, on so partial a nomination by Mr. Barclay, it is desirable that it might be done. In a report made to Congress by Mr. Jay, in April 1785, on this subject,7 he proposed that his Britannic Majesty should name his half of the Commissioners, “being inhabitants of any of his dominions except those which are situated in & to the west and south of the gulph of St. Lawrence, and that the U. States should name the other half from any of their countries, except Massachusetts.” The whole number of Commissioners then contemplated by Mr. Jay was 6. 8. 10. or 12.
The 3d question asked by Mr. Howell is in itself, as well as for the reasons contained in the preceding observations, highly important. The words in the article are “The said commissioners shall by a declaration under their hands & seals decide what river is the river St. Croix intended by the treaty:” Not the said Commissioners or any two of them agreeing. What is the legal construction of this article on this point? No such question arises on the 6th and 7th articles,8 any three of the five commissioners being competent to a decision, the fifth commissioner being present. On one hand if unanimity be necessary, it will enable either party to counteract any flagrant partiality; on the other, it may defeat a great object of the article—putting a final end to a dispute that might have disagreeable consequences. Permit me to request your attention to this subject, and that you would converse with Mr. Jay upon it. In the course of two or three days I expect Mr. Howell will call on you both at New York.
I am very respectfully & affectionately yours
Alexander Hamilton Esqr.
ALS, Hamilton Papers, Library of Congress; copy, Massachusetts Historical Society, Boston; copy, Columbia University Libraries.
1. On May 21, 1796, the Senate confirmed the President’s nomination of “David Howell, of the State of Rhode Island, to be the Commissioner on the part of the United States, for the purpose of ascertaining the River St. Croix, agreeably to the fifth article of the treaty of amity, commerce, and navigation, between the United States and Great Britain” (Executive Journal, I description begins Journal of the Executive Proceedings of the Senate (Washington, 1828), I. description ends , 210–11). Howell had been a delegate to the Continental Congress and a judge of the Supreme Court of Rhode Island. At the time of his appointment as United States commissioner, he was practicing law in Providence.
For the text of Article 5 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 12.
2. The British commissioner was Thomas Barclay of Nova Scotia, who had been a Loyalist during the American Revolution.
3. In the margin opposite this paragraph, John Jay wrote: “not at all.”
4. In the margin opposite this paragraph, Jay wrote: “Yes.”
5. On May 21, 1796, the Senate approved the nomination of “James Sullivan, of Massachusetts, to be the Agent on behalf of the United States, to manage the business of the fifth article of the treaty of amity, commerce, and navigation between the United States and Great Britain” (Executive Journal, I description begins Journal of the Executive Proceedings of the Senate (Washington, 1828), I. description ends , 211). In 1788 Sullivan had been appointed judge of probate for Suffolk County, and from 1790 to 1807 he served as attorney general of Massachusetts.
6. Thomas Carleton.
7. On April 21, 1785, Jay, as “Secretary of the United States for the Department of foreign Affairs, to whom was referred the Papers … respecting the Eastern boundary Line of the United States,” had reported “That in his Opinion effectual Measures should immediately be taken to settle all Disputes with the Crown of Great Britain relative to that Line.
“He thinks that Copies of the said Papers should be transmitted to the Minister Plenipotentiary of the United States at that Court, with Instructions to present a proper Representation of the Case, and to propose that Commissioners be appointed to hear and finally decide those Disputes.…
“That the Number of Commissioners should be six, or eight, or ten, or twelve at the Election of his britannic Majesty: the exact Number not being important.” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXVIII, 287–88.)