To the Senate of the United States:
I herewith transmit to the Senate of the United States a report from the Secretary of State, accompanied by a copy of the correspondence requested by their resolution of the 5th ultimo.
M. VAN BUREN.
DEPARTMENT OF STATE,
Washington, March 7, 1838.
The PRESIDENT OF THE UNITED STATES:
The Secretary of State, to whom has been referred the resolution of the Senate of the 5th of February, requesting the President of the United States to communicate to that body, in such manner as he shall deem proper, all the correspondence recently received and had between this and the Governments of Great Britain and the State of Maine on the subject of the northeastern boundary, has the honor to report to the President the accompanying copy of letters, which comprise all the correspondence in the Department asked for by the resolution.
Mr. Fox to Mr. Forsyth.
Washington , January 10, 1838.
Hon. JOHN FORSYTH, etc.:
The undersigned, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary, is directed by his Government to make the following observations to Mr. Forsyth, Secretary of State of the United States, with reference to certain points connected with the question of the northeastern boundary, which question forms the subject of the accompanying note, which the undersigned has the honor this day to address to Mr. Forsyth:
The British Government, with a view to prevail upon that of the United States to come to an understanding with Great Britain upon the river question, had stated that the King of the Netherlands in his award had decided that question according to the British interpretation of it and had expressed his opinion that the rivers which fall into the Bay of Fundy are not to be considered as Atlantic rivers for the purposes of the treaty.
Mr. Forsyth, however, in his note to Sir Charles Vaughan of the 28th of April, 1835, controverts this assertion and maintains that the King of the Netherlands did not in his award express such an opinion, and Mr. Forsyth quotes a passage from the award in support of this proposition.
But it appears to Her Majesty's Government that Mr. Forsyth has not correctly perceived the meaning of the passage which he quotes, for in the passage in question Mr. Forsyth apprehends that the word "alone" is governed by the verb " include ," whereas an attentive examination of the context will show that the word " alone " is governed by the verb " divide ," and that the real meaning of the passage is this: That the rivers flowing north and south from the highlands claimed by the United States may be arranged in two genera, the first genus comprehending the rivers which fall into the St. Lawrence, the second genus comprehending those whose waters in some manner or other find their way into the Atlantic; but that even if, according to this general classification and in contradistinction from rivers flowing into the St. Lawrence, the rivers which fall into the bays of Chaleurs and Fundy might be comprised in the same genus with the rivers which fall directly into the Atlantic, still the St. John and the Restigouehe form a distinct species by themselves and do not belong to the species of rivers which fall directly into the Atlantic, for the St. John and Restigouche are not divided in company with any such last-mentioned rivers. And the award goes on to say that, moreover, if this distinction between the two species were confounded an erroneous interpretation would be applied to a treaty in which every separate word must be supposed to have a meaning, and a generic distinction would be given to cases which are purely specific.
The above appears to be the true meaning of the passage quoted by Mr. Forsyth; but if that passage had not been in itself sufficiently explicit, which Her Majesty's Government think it is, the passage which immediately follows it would remove all doubt as to what the opinion of the King of the Netherlands was upon the river question, for that passage, setting forth reasons against the line of boundary claimed by the United States, goes on to say that such line would not even separate the St. Lawrence rivers immediately from the St. John and Restigouche, and that thus the rivers which this line would separate from the St. Lawrence rivers would need, in order to reach the Atlantic , the aid of two intermediaries --first, the rivers St. John and Restigouche, and, secondly, the bays of Chaleurs and Fundy .
Now it is evident from this passage that the King of the Netherlands deemed the bays of Fundy and Chaleurs to be, for the purposes of the treaty, as distinct and separate from the Atlantic Ocean as are the rivers St. John and Restigouche, for he specifically mentions those rivers and those bays as the channels through which certain rivers would have to pass in their way from the northern range of dividing highlands down to the Atlantic Ocean; and it is clear that he considers that the waters of those highland rivers would not reach the Atlantic Ocean until after they had traveled through the whole extent either of the Restigouche and the Bay of Chaleurs or of the St. John and the Bay of Fundy, as the case might be; and for this reason, among others, the King of the Netherlands declared it to be his opinion that the line north of the St. John claimed by the United States is not the line intended by the treaty.
The undersigned avails himself of this occasion to renew to Mr. Forsyth the assurances of his high respect and consideration.
H. S. FOX.
Mr. Fox to Mr. Forsyth.
Washington , January 10, 1838.
Hon. John Forsyth, etc.:
The undersigned, Her Britannic Majesty's envoy extraordinary. and minister plenipotentiary, has received the orders of his Government to make the following communication to the Secretary of State of the United States with reference to the question pending between the two Governments upon the subject of the northeastern boundary:
The undersigned is, in the first instance, directed to express to Mr. Forsyth the sincere regret of Her Majesty's Government that the long-continued endeavors of both parties to come to a settlement of this important matter have hitherto been unavailing. Her Majesty's Government feel an undiminished desire to cooperate with the Cabinet of Washington for the attainment of an object of so much mutual interest, and they learn with satisfaction that their sentiments upon this point are fully shared by the actual President of the United States.
The communications which during the last few years have taken place between the two Governments with reference to the present subject, if they have not led to the solution of the questions at issue, have at least narrowed the field of future discussion.
Both Governments have agreed to consider the award of the King of the Netherlands as binding upon neither party, and the two Governments, therefore, are as free in this respect as they were before the reference to that Sovereign was made. The British Government, despairing of the possibility of drawing a line that shall be in literal conformity with the words of the treaty of 1783, has suggested that a conventional boundary should be substituted for the line described by the treaty, and has proposed that in accordance with the principles of equity and in pursuance of the general practice of mankind in similar cases the object of difference should be equally divided between the two differing parties, each of whom is alike convinced of the justice of its own claim.
The United States Government has replied that to such an arrangement it has no power to agree; that until the line of the treaty shall have been otherwise determined the State of Maine will continue to assume that the line which it claims is the true line of 1783, and will assert that all the land up to that line is territory of Maine; that consequently such a division of the disputed territory as is proposed by Great Britain would be considered by Maine as tantamount to a cession of what that State regards as a part of its own territory, and that the Federal Government has no power to agree to such an arrangement without the consent of the State concerned.
Her Majesty's Government exceedingly regrets that such an obstacle should exist to prevent that settlement which under all the circumstances of the case appears to be the simplest, the readiest, the most satisfactory, and the most just. Nor can Her Majesty's Government admit that the objection of the State of Maine is well rounded, for the principle on which that objection rests is as good for Great Britain as it is for Maine. If Maine thinks itself entitled to contend that until the true line described in the treaty is determined the boundary claimed by Maine must be regarded as the right one, Great Britain is surely still more entitled to insist upon a similar pretension, and to assert that until the line of the treaty shall be established to the satisfaction of both parties the whole of the disputed territory ought to be considered as belonging to the British Crown, because Great Britain is the original possessor, and all the territory which has not been proved to have been by treaty ceded by her must be looked upon as belonging to her still. But the very existence of such conflicting pretensions seems to point out the expediency of a compromise, and what compromise can be more fair than that which would give to each party one-half of the subject-matter of dispute?
A conventional line different from that described in the treaty was agreed to, as stated by Mr. Forsyth in his note of the 28th of April, 1835, with respect to the boundary westward from the Lake of the Woods. Why should such a line not be agreed to likewise for the boundary eastward from the river Connecticut?
Her Majesty's Government can not refrain from again pressing this proposition upon the serious consideration of the Government of the United States as the arrangement which would be best calculated to effect a prompt and satisfactory settlement between the two powers.
The Government of the United States, indeed, while it expressed a doubt of its being able to obtain the assent of Maine to the above-mentioned proposal, did, nevertheless, express its readiness to apply to the State of Maine for the assent of that State to the adoption of another conventional line, which should make the river St. John from its source to its mouth the boundary between the two countries. But it is difficult to understand upon what grounds any expectation could have been formed that such a proposal could be entertained by the British Government, for such an arrangement would give to the United States even greater advantages than they would obtain by an unconditional acquiescence in their claim to the whole of the disputed territory, because such an arrangement would, in the first place, give to Maine all that part of the disputed territory which lies to the south of the St. John, and would, in the next place, in exchange for the remaining part of the disputed territory which lies to the north of the St. John, add to the State of Maine a large district of New Brunswick lying between the United States boundary and the southern part of the course of the St. John--a district smaller, indeed, in extent, but much more considerable in value, than the portion of the disputed territory which lies to the north of the St. John.
But with respect to a conventional line generally, the Government of Washington has stated that it has not at present the powers constitutionally requisite for treating for such a line and has no hopes of obtaining such powers until the impossibility of establishing the line described by the treaty shall have been completely demonstrated by the failure of another attempt to trace that line by a local survey.
Under these circumstances it appears that a conventional line can not at present be agreed upon, and that such a mode of settlement is in the existing state of the negotiation impossible.
Thus, then, the award of the King of the Netherlands has been abandoned by both parties in consequence of its rejection by the American Senate, and a negotiation between the two Governments for a conventional line suited to the interests and convenience of the two parties has for the present been rendered impossible by difficulties arising on the part of the United States; and both Governments are alike averse to a new arbitration. In this state of things the Government of the United States has proposed to the British cabinet that another attempt should be made to trace out a boundary according to the letter of the treaty, and that a commission of exploration and survey should be appointed for that purpose.
Her Majesty's Government have little expectation that such a commission could lead to any useful result, and on that account would be disposed to object to the measure; but at the same time they are so unwilling to reject the only plan now left which seems to afford a chance of making any further advance in this long-pending matter that they will not withhold their consent to such a commission if the principle upon which it is to be formed and the manner in which it is to proceed can be satisfactorily settled.
The United States Government have proposed two modes in which such a commission might be constituted: First, that it might consist of commissioners named in equal numbers by each of the two Governments, with an umpire to be selected by some friendly European power; secondly, that it might be entirely composed of scientific Europeans, to be selected by a friendly sovereign, and might be accompanied in its operations by agents of the two different parties, in order that such agents might give to the commissioners assistance and information.
If such a commission were to be appointed, Her Majesty's Government think that the first of these two modes of constructing it would be the best, and that it should consist of members chosen in equal numbers by each of the two Governments. It might, however, be better that the umpire should be selected by the members of the commission themselves rather than that the two Governments should apply to a third power to make such a choice.
The object of this commission, as understood by Her Majesty's Government, would be to explore the disputed territory in order to find within its limits dividing highlands which may answer the description of the treaty, the search being first to be made in the due north line from the monument at the head of the St. Croix, and if no such highlands should be found in that meridian the search to be then continued to the westward thereof; and Her Majesty's Government have stated their opinion that in order to avoid all fruitless disputes as to the character of such highlands the commissioners should be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty.
The United States Secretary of State, in his note of the 5th of March, 1836, expresses a wish to know how the report of the commissioners would, according to the views of Her Majesty's Government, be likely when rendered to lead to an ultimate settlement of the question of boundary between the two Governments.
In reply to this inquiry Her Majesty's Government would beg to observe that the proposal to appoint a commission originated not with them, but with the Government of the United States, and that it is therefore rather for the Government of the United States than for that of Great Britain to answer this question.
Her Majesty's Government have themselves already stated that they have little expectation that such a commission could lead to any useful result, and that they would on that account be disposed to object to it; and if Her Majesty's Government were now to agree to appoint such a commission it would be only in compliance with the desire so strongly expressed by the Government of the United States, and in spite of doubts (which Her Majesty's Government still continue to entertain) of the efficacy of the measure.
But with respect to the way in which the report of the commission might be likely to lead to an ultimate settlement of the question, Her Majesty's Government, in the first place, conceive that it was meant by the Government of the United States that if the commission should discover highlands answering to the description of the treaty a connecting line drawn from these highlands to the head of the St. Croix should be deemed to be a portion of the boundary line between the two countries. But Her Majesty's Government would further beg to refer the United States Secretary of State to the notes of Mr. Mclane of the 5th of June, 1833, and of the 11th and 28th of March, 1834, on this subject, in which it will be seen that the Government of the United States appears to have contemplated as one of the possible results of the proposed commission of exploration that such additional information might possibly be obtained respecting the features of the country in the district to which the treaty relates as might remove all doubt as to the impracticability of laying down a boundary in accordance with the letter of the treaty.
And if the investigations of the proposed commission should show that there is no reasonable prospect of finding a line strictly conformable with the description contained in the treaty of 1783, the constitutional difficulties which now prevent the United States from agreeing to a conventional line may possibly be removed, and the way may thus be prepared for the satisfactory settlement of the difference by an equitable division of the disputed territory.
But if the two Governments should agree to the appointment of such a commission it would be necessary that their agreement should be first recorded in a convention, and it would obviously be indispensable that the State of Maine should be an assenting party to the arrangement.
The undersigned, in making the above communication by order of Her Majesty's Government to the United States Secretary of State, Mr. Forsyth, has the honor to renew to him the assurance of his high respect and consideration.
H. S. FOX.
Mr. Forsyth to Mr. Fox.
DEPARTMENT OF STATE,
Washington , February 6, 1838.
HENRY S. Fox, Esq., etc.:
The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note of Mr. Fox, envoy extraordinary and minister plenipotentiary of Her Britannic Majesty of the 10th ultimo, in which he presents, by direction of his Government, certain observations in respect to the construction to be given to that part of the award of the arbiter on the question of the northeastern boundary which relates to the character in which the rivers St. John and Restigouche are to be regarded in reference to that question. Sir Charles Vaughan, in his note to Mr. McLane of February 10, 1834, alleged that although the arbiter had not decided the first of the three main questions proposed to him, yet that he had determined certain subordinate points connected with that question upon which the parties had entertained different views, and among others that the rivers St. John and Restigouche could not be considered, according to the meaning of the treaty, as "rivers flowing into the Atlantic." The undersigned, in his note to Sir Charles R. Vaughan of the 28th of April, 1835, questioned the correctness of the interpretation which had been given by Sir Charles to the award of the arbiter in this particular, and after quoting that part of the award to which Sir Charles was supposed to refer as containing the determination by the arbiter of the point just mentioned observed that it could not but appear from further reflection to Sir Charles that the declaration that the rivers St. John and Restigouche could not be alone taken into view without hazard in determining the disputed boundary was not the expression of an opinion that they should be altogether excluded in determining that question; or, in other words, that they could not be looked upon as rivers emptying into the Atlantic. The remarks presented by Mr. Fox in the note to which this is a reply are designed to shew a misconception on the part of the undersigned of the true meaning of the passage cited by him from the award and to support the construction which was given to it by Sir Charles Vaughan. Whether the apprehension entertained by the one party or the other of the opinion of the arbiter upon this minor point be correct is regarded by the undersigned as a matter of no consequence in the settlement of the main question. The Government of the United States never having acquiesced in the decision of the arbiter that "the nature of the difference and the vague and not sufficiently determinate stipulations of the treaty of 1783 do not permit the adjudication of either of the two lines respectively claimed by the interested parties to one of the said parties without wounding the principles of law and equity with regard to the other," can not consent to be governed in the prosecution of the existing negotiation by the opinion of the arbiter upon any of the preliminary points about which there was a previous difference between the parties, and the adverse decision of which has led to so unsatisfactory and, in the view of this Government, so erroneous a conclusion. This determination on the part of the United States not to adopt the premises of the arbiter while rejecting his conclusion has been heretofore made known to Her Majesty's Government, and while it remains must necessarily render the discussion of the question what those premises were unavailing, if not irrelevant. The few observations which the undersigned was led to make in the course of his note to Sir Charles Vaughan upon one of the points alleged to have been thus determined were prompted only by a respect for the arbiter and a consequent anxiety to remove a misinterpretation of his meaning, which alone, it was believed, could induce the supposition that the arbiter, in searching for the rivers referred to in the treaty as designating the boundary, could have come to the opinion that the two great rivers whose waters pervaded the whole district in which the search was made and constituted the most striking objects of the country had been entirely unnoticed by the negotiators of the treaty and were to be passed over unheeded in determining the line, while others were to be sought for which he himself asserts could not be found. That the imputation of such an opinion to the respected arbiter could only be the result of misinterpretation seemed the more evident, as he had himself declared that "it could not be sufficiently explained how, if the high contracting parties intended in 1783 to establish the boundary at the south of the river St. John, that river, to which the territory in dispute was in a great measure indebted for its distinctive character, had been neutralized and set aside." It is under the influence of the same motives that the undersigned now proceeds to make a brief comment upon the observations contained in Mr. Fox's note of the 10th ultimo, and thus to close a discussion which it can answer no purpose to prolong.
The passage from the award of the arbiter quoted by the undersigned in his note of the 28th April, 1835, to Sir Charles Vaughan, and the true meaning of which Mr. Fox supposes to have been misconceived, is the following: "If in contradistinction to the rivers that empty themselves into the river St. Lawrence it had been proper, agreeably to the language ordinarily used in geography, to comprehend the rivers falling into the bays Fundy and Des Chaleurs with those emptying themselves directly into the Atlantic Ocean in the generical denomination of rivers falling into the Atlantic Ocean it would be hazardous to include into the species belonging to that class the rivers St. John and Restigouche, which the line claimed at the north of the river St. John divides immediately from rivers emptying themselves into the river St. Lawrence, not with other rivers falling into the Atlantic Ocean, but alone , and thus to apply in interpreting the delimitation established by a treaty, where each word must have a meaning, to two exclusively special cases, and where no mention is made of the genus ( genre ), a generical expression which would ascribe to them a broader meaning," etc.
It was observed by the undersigned that this passage did not appear to contain an expression of opinion by the arbiter that the rivers St. John and Restigouche should be altogether excluded in determining the question of disputed boundary, or, in other words, that they could not be looked upon as "rivers emptying into the Atlantic." Mr. Fox alleges this to be a misconception of the meaning of the arbiter, and supposes it to have arisen from an erroneous apprehension by the undersigned that the word " alone " is governed by the verb " include ," whereas he thinks that an attentive examination of the context will shew that the word " alone " is governed by the verb " divide, " and that the real meaning of the passage is this: "That the rivers flowing north and south from the highlands claimed by the United States may be arranged in two genera, the first genus comprehending the rivers which fall into the St. Lawrence, the second genus comprehending those whose waters in some manner or other find their way into the Atlantic: but that even if according to the general classification and in contradistinction from rivers flowing into the St. Lawrence, the rivers which fall into the bays of Chaleurs and Fundy might be comprised in the same genus with the rivers which fall directly into the Atlantic, still the St. John and the Restigouche form a distinct species by themselves and do not belong to the species of rivers which fall directly into the Atlantic, for the St. John and Restigouche are not divided in company with any s uch last-mentioned rivers ." The undersigned considers it unnecessary to enter into the question whether according to the context the circumstance expressed by the adverb "alone" has reference to the verb "divide" or to the verb "include," because even allowing it to refer to the former it does not appear to the undersigned that his interpretation of the passage is thereby impaired or that of Mr. Fox sustained, The undersigned conceives that the arbiter contemplated two different species of rivers as admissible into the genus of those which "fall into the Atlantic," to wit, those which fall directly into the Atlantic and those which fall into it indirectly ; that the arbiter was further of opinion, though at variance with the idea entertained in that respect by the United States, that the rivers St. John and Restigouche, emptying their waters into the bays of Fundy and Des Chaleurs, did not belong to the species of rivers falling directly into the Atlantic; that if they were considered alone, therefore, the appellation of "rivers falling into the Atlantic Ocean" could not be regarded as applicable to them, because, to use the language of the award, it would be "applying to two exclusively special cases, where no mention was made of the genus, a generical expression which would ascribe to them a broader meaning;" but it is not conceived that the arbiter intended to express an opinion that these rivers might not be included with others in forming the genus of rivers described by the treaty as those which "fall into the Atlantic," and that upon this ground they should be wholly excluded in determining the question of the disputed boundary. While, therefore, the undersigned agrees with Mr. Fox that the arbiter did not consider these rivers as falling directly into the Atlantic Ocean, the undersigned can not concur in Mr. Fox's construction when he supposes the arbiter to give as a reason for this that they are not divided in company with any such last-mentioned rivers --that is, with rivers falling directly into the Atlantic. Conceding as a point which it is deemed unnecessary for the present purpose to discuss that the grammatical construction of the sentence contended for by Mr. Fox is the correct one, the arbiter is understood to say only that those rivers are not divided immediately with others falling into the Atlantic, either directly or indirectly, but he does not allege this to be a sufficient reason for excluding them when connected with other rivers divided mediately from those emptying into the St. Lawrence from the genus of rivers "falling into the Atlantic." On the contrary, it is admitted in the award that the line claimed to the north of the St. John divides the St. John and Restigouche in company with the Schoodic Lakes, the Penobscot, and the Kennebec, which are stated as emptying themselves directly into the Atlantic; and it is strongly implied in the language used by the arbiter that the first-named rivers might, in his opinion, be classed for the purposes of the treaty with those last named, though not in the same species , yet in the same genus of "Atlantic rivers."
The reason why the St. John and Restigouche were not permitted to determine the question of boundary in favor of the United States is understood to have been, not that they were to be wholly excluded as rivers not falling into the Atlantic Ocean, as Mr. Fox appears to suppose, but because in order to include them in that genus of rivers they must be considered in connection with other rivers which were not divided immediately , like themselves, from the rivers falling into the St. Lawrence, but mediately only; which would introduce the principle that the treaty of 1783 meant highlands that divide as well mediately as immediately the rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean- a principle which the arbiter did not reject as unfounded or erroneous, but which, considered in connection with the other points which he had decided, he regarded as equally realized by both lines , and therefore as constituting an equal weight in either scale, and consequently affording him no assistance in determining the dispute between the respective parties.
The arbiter appears to the undersigned to have viewed the rivers St. John and Restigouche as possessing both a specific and a generic character; that considered alone they were specific , and the designation in the treaty of "rivers falling into the Atlantic" was inapplicable to them; that considered in connection with other rivers they were generic and were embraced in the terms of the treaty, but that as their connection with other rivers would bring them within a principle which, according to the views taken by him of other parts of the question, was equally realized by both lines, it would be hazardous to allow them any weight in deciding the disputed boundary. It has always been contended by this Government that the rivers St. John and Restigouche were to be considered in connection with the Penobscot and Kennebec in determining the highlands called for by the treaty, and the arbiter is not understood to deny to them, when thus connected, the character of "rivers falling into the Atlantic Ocean."
This construction of the arbiter's meaning, derived from the general tenor of the context, it will be perceived, is not invalidated by the next succeeding paragraph cited by Mr. Fox, in which the bays of Fundy and Des Chaleurs are spoken of as intermediaries whereby the rivers flowing into the St. John and Restigouche reach the Atlantic Ocean, inasmuch as such construction admits the opinion of the arbiter to have been that the St. John and Restigouche do not fall directly into the Atlantic, and that they thus constitute a species by themselves, while it denies that they are therefore excluded by the arbiter from the genus of "rivers falling into the Atlantic."
The undersigned avails himself of this opportunity to renew to Mr. Fox the assurance of his distinguished consideration.
Mr. Forsyth to Mr. Fox.
DEPARTMENT OF STATE,
Washington , February 7, 1838.
HENRY S. FOX, Esq., etc.:
The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note addressed to him on the 10th ultimo by Mr. Fox, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary at Washington, with regard to the question pending between the two Governments upon the subject of the northeastern boundary, and to inform him that his communication has been submitted to the President. It has received from him the attentive examination due to a paper expected to embody the views of Her Britannic Majesty's Government in reference to interests of primary importance to both countries. But whilst the president sees with satisfaction the expression it contains of a continued desire on the part of Her Majesty's Government to cooperate with this in its earnest endeavors to arrange the matter of dispute between them, he perceives with feelings of deep disappointment that the answer now presented to the propositions made by this Government with the view of effecting that object, after having been so long delayed, notwithstanding the repeated intimations that it was looked for here with much anxiety, is so indefinite in its terms as to render it impracticable to ascertain without further discussion what are the real wishes and intentions of Her Majesty's Government respecting the proposed appointment of a commission of exploration and survey to trace out a boundary according to the letter of the treaty of 1783. The President, however, for the purpose of placing in the possession of the State of Maine the views of Her Majesty's Government as exhibited in Mr. Fox's note, and of ascertaining the sense of the State authorities upon the expediency of meeting those views so far as they are developed therein, has directed the undersigned to transmit a copy of it to Governor Kent for their consideration. This will be accordingly done without unnecessary delay, and the result when obtained may form the occasion of a further communication to Her Majesty's minister.
In the meantime the undersigned avails himself of the present occasion to offer a few remarks upon certain parts of Mr. Fox's note of the 10th ultimo. After adverting to the suggestion heretofore made by the British Government that a conventional line equally dividing the territory in dispute between the two parties should be substituted for the line described by the treaty, and regretting the constitutional incompetency of the Federal Government to agree to such an arrangement without the consent of the State of Maine, Mr. Fox refers to the conventional line adopted, although different from that designated by the treaty, with respect to the boundary westward from the Lake of the Woods, and asks, "Why should such a line not be agreed to likewise for the boundary eastward from the river Connecticut?" The reply 'to this question is obvious. The parallel of latitude adopted on the occasion referred to as a conventional substitute for the treaty line passed over territory within the exclusive jurisdiction of the General Government without trenching upon the rights or claims of any individual member of the Union, and the legitimate power of the Government, therefore, to agree to such line was perfect and unquestioned. Now in consenting to a conventional line for the boundary eastward from the river Connecticut the Government of the United States would transcend its constitutional powers, since such a measure could only be carried into effect by violating the jurisdiction of a sovereign State of the Union and by assuming to alienate, without the color of rightful authority to do so, a portion of the territory claimed by the State.
With regard to the suggestion made by the undersigned in his note of the 29th of February, 1836, of the readiness of the President to apply to the State of Maine for her assent to the adoption of a conventional line making the river St. John, from its source to its mouth, the boundary between the United States and the adjacent British Provinces, Mr. Fox thinks it difficult to understand upon what grounds an expectation could have been formed that such a proposal could be entertained by the British Government, since such an arrangement would give to the United States even greater advantages than would be obtained by an unconditional acquiescence in their claim to the whole territory in dispute. In making the suggestion referred to, the undersigned expressly stated to Mr. Bankhead that it was offered, as the proposition on the part of Great Britain that led to it was supposed to have been, without regard to the mere question of acres--the extent of territory lost or acquired by the respective parties. The suggestion was submitted in the hope that the preponderating importance of terminating at once and forever this controversy by establishing an unchangeable and definite and indisputable boundary would be seen and acknowledged by Her Majesty's Government, and have a correspondent weight in influencing its decision. That the advantages of substituting a river for a highland boundary could not fail to be recognized was apparent from the fact that Mr. Bankhead's note of 28th December, 1835, suggested the river St. John from the point in which it is intersected by a due north line drawn from the monument at the head of the St. Croix to the southernmost source of that river as a part of the general outline of a conventional boundary. No difficulty was anticipated on the part of Her Majesty's Government in understanding the grounds upon which such a proposal was expected to be entertained by it, since the precedent proposition of Mr. Bankhead, just adverted to, although professedly based on the principle of an equal division between the parties, could not be justified by it, as it would have given nearly two-thirds of the disputed territory to Her Majesty's Government. It was therefore fairly presumed that the river line presented, in the opinion of Her Majesty's Government, advantages sufficient to counterbalance any loss of territory by either party that would follow its adoption as a boundary. Another recommendation of the river line, it was supposed, would be found by Her Majesty's Government in the fact that whilst by its adoption the right of jurisdiction alone would have been yielded to the United States over that portion of New Brunswick south of the St. John, Great Britain would have acquired the right of soil as well as of jurisdiction of the whole portion of the disputed territory north of the river. It is to be lamented that the imposing considerations alluded to have failed in their desired effect--that the hopes of the President in regard to them have not been realized, and consequently that Her Britannic Majesty's Government is not prepared at present to enter into an arrangement of the existing difference between the two nations upon the basis proposed.
It would seem to the undersigned, from an expression used in Mr. Fox's late communication, that some misapprehension exists on his part either as to the object of this Government in asking for information relative to the manner in which the report of a commission of exploration and survey might tend to a practical result in the settlement of the boundary question or as to the distinctive difference between the American proposal for the appointment of such a commission and the same proposition when modified to meet the wishes of Her Majesty's Government. Of the two modes suggested, by direction of the President, for constituting such a commission, the first is that which is regarded by Her Majesty's Government with most favor, viz, the commissioners to be chosen in equal numbers by each of the two parties, with an umpire selected by some friendly European sovereign to decide on all points on which they might disagree, with instructions to explore the disputed territory in order to find within its limits dividing highlands answering to the description of the treaty of 1783, in a due north or northwesterly direction from the monument at the head of the St. Croix, and that a right line drawn between such highlands and said monument should form so far as it extends a part of the boundary between the two countries, etc. It is now intimated that Her Majesty's Government will not withhold its consent to such a commission "if the principle upon which it is to be formed and the manner in which it is to proceed can be satisfactorily settled." This condition is partially explained by the suggestion afterwards made that instead of leaving the umpire to be chosen by some friendly European power it might be better that he should be elected by the members of the commission themselves, and a modification is then proposed that "the commission shall be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty." The American proposition is intended--and it agreed to would doubtless be successful--to decide the question of boundary definitively by the adoption of the highlands reported by the commissioners of survey, and would thus secure the treaty line. The British modification looks to no such object. It merely contemplates a commission of boundary analogous to that appointed under the fifth article of the treaty of Ghent, and would in all probability prove equally unsatisfactory in practice. Whether highlands such as are described in the treaty do or do not exist, it can scarcely be hoped that those called for by the modified instructions could be found. The fact that this question is still pending, although more than half a century has elapsed since the conclusion of the treaty in which it originated, renders it in the highest degree improbable that the two Governments can unite in believing that either the one or the other of the ranges of highlands claimed by the respective parties fulfills the required conditions of that instrument. The opinions of the parties have been over and over again expressed on this point and are well known to differ widely. The commission can neither reconcile nor change these variant opinions resting on conviction, nor will it be authorized to decide the difference. Under these impressions of the inefficiency of such a commission was the inquiry made in the letter of the undersigned of 5th March, 1836, as to the manner in which the report of the commission, as proposed to be constituted and instructed by Her Majesty's Government, was expected to lead to an ultimate settlement of the question of boundary. The results which the American proposition promised to secure were fully and frankly explained in previous notes from the Department of State, and had its advantages not been clearly understood this Government would not have devolved upon that of Her Majesty the task of illustrating them. Mr. Fox will therefore see that although the proposal to appoint a commission had its origin with this Government the modification of the American proposition was, as understood by the undersigned, so fundamentally important that it entirely changed its nature, and that the supposition, therefore, that it was rather for the Government of the United States than for that of Great Britain to answer the inquiry referred to is founded in misapprehension. Any decision made by a commission constituted in the manner proposed by the United States and instructed to seek for the highlands of the treaty of 1783 would be binding upon this Government and could without unnecessary delay be carried into effect; but if the substitute presented by Her Majesty's Government be insisted on and its principles be adopted, a resort will then be necessary to the State of Maine for her assent to all proceedings hereafter in relation to this matter, since if any arrangement can be made under it it can only be for a conventional line, to which she must of course be a party.
The undersigned, in conclusion, is instructed to inform Mr. Fox that if a negotiation be entertained at all upon the inconclusive and unsatisfactory basis afforded by the British counter proposition or substitute, which possesses hardly a feature in common with the American proposition, the President will not venture to invite it unless the authorities of the State of Maine, to whom, as before stated, it will be forthwith submitted, shall think it more likely to lead to a final adjustment of the question of boundary than the General Government deems it to be, though predisposed to see it in the most favorable light.
The undersigned avails himself of the occasion to renew to Mr. Fox the assurance of his distinguished consideration.
DEPARTMENT OF STATE,
Washington, March 1, 1838 .
His Excellency EDWARD KENT,
Governor of the State of Maine.
SIR The discussions between the Federal Government and that of Great Britain in respect to the northeastern boundary of the United States have arrived at a stage in which the President thinks it due to the State of Maine and necessary to the intelligent action of the General Government to take the sense of that State in regard to the expediency of opening a direct negotiation for the establishment of a conventional line, and if it should deem an attempt to adjust the matter of controversy in that form advisable, then to ask its assent to the same. With this view and to place the government of Maine in full possession of the present state of the negotiation and of all the discussions that have been had upon the subject, the accompanying documents are communicated, which, taken in connection with those heretofore transmitted, will be found to contain that information.
The principles which have hitherto governed every successive Administration of the Federal Government in respect to its powers and duties in the matter are--
First. That it has power to settle the boundary line in question with Great Britain upon the principles and according to the stipulations of the treaty of 1783, either by direct negotiation or, in case of ascertained inability to do so, by arbitration, and that it is its duty to make all proper efforts to accomplish this object by one or the other of those means.
Second. That the General Government is not competent to negotiate, unless, perhaps, on grounds of imperious public necessity, a conventional line involving a cession of territory to which the State of Maine is entitled, or the exchange thereof for other territory not included within the limits of that State according to the true construction of the treaty, without the consent of the State,
In these views of his predecessors in office the President fully concurs, and it is his design to continue to act upon them.
The attention of the Federal Government has, of course, in the first instance been directed to efforts to settle the treaty line. A historical outline of the measures which have been successively taken by it to that end may be useful to the government of Maine in coming to a conclusion on the proposition now submitted. It will, however, be unnecessary here to do more than advert to the cardinal features of this protracted negotiation.
The treaty of peace between the United States of America and His Britannic Majesty, concluded at Paris in September, 1783, defines the boundaries of the said States, and the following words, taken from the second article of that instrument, are intended to designate a part of the boundary between those States and the British North American Provinces, viz: "From the northwest angle of Nova Scotia, viz, that angle which is formed by a line drawn due north from the source of the St. Croix River to the highlands; along the said highlands which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean to the northwesternmost head of Connecticut River;" * * * "east by a line to be drawn along the middle of the river St. Croix from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence." -An immediate execution of some of the provisions of this treaty was, however, delayed by circumstances on which it is now unnecessary to dwell, and in November, 1794, a second treaty was concluded between the two powers. In the meantime, doubts having arisen as to what river was truly intended under the name of the St. Croix mentioned in the treaty of peace and forming a part of the boundary therein described, this question was referred by virtue of the fifth article of the new treaty to the decision of a commission appointed in the manner therein prescribed, both parties agreeing to consider such decision final and conclusive. The commissioners appointed in pursuance of the fifth article of the treaty of 1794 decided by their declaration of October 25, 1798, that the northern branch (Cheputnaticook) of a river called Scoodiac was the true river St. Croix intended by the treaty of peace.
At the date of the treaty of Ghent, December 24, 1814, the whole of the boundary line from the source of the river St. Croix to the most northwesternmost point of the Lake of the Woods still remained unascertained, and it was therefore agreed to provide for a final adjustment thereof. For this purpose the appointment of commissioners was authorized by the fifth article of the treaty of Ghent, with power to ascertain and determine the northwest angle of Nova Scotia and the northwestern-most head of Connecticut River, in conformity with the provisions of the treaty of 1783, and to cause the boundary from the source of the river St. Croix to the river Iroquois or Cateraguy to be surveyed and marked according to the said provisions, etc. In the event of the commissioners differing, or both or either of them failing to act, the same article made provision for a reference to a friendly sovereign or state. Commissioners were appointed under this article in 1815-16, but although their sessions continued several years, they were unable to agree on any of the matters referred to them. Separate reports were accordingly made to both Governments of the two commissioners in 1822, stating the points on which they differed and the grounds upon which their respective opinions had been formed. The case having thus happened which made it necessary to refer the points of difference to a friendly sovereign or state, it was deemed expedient by the parties to regulate this reference by a formal arrangement. A convention for the purpose was therefore concluded on the 29th of September, 1827, and the two Governments subsequently agreed in the choice of His Majesty the King of the Netherlands as arbiter, who consented to act as such. The submission of the points of difference, three in number, was accordingly made to that Sovereign, and his award, or rather written opinion on the questions submitted to him, was rendered on the 10th of January, 1831. On the 7th of December following the President communicated the award of the arbiter to the Senate of the United States for the advice and consent of that body as to its execution, and at the same time intimated the willingness of the British Government to abide by it. The result was a determination on the part of the Senate not to consider the decision of His Netherland Majesty obligatory and a refusal to advise and consent to its execution. They, however, passed a resolution in June, 1832, advising the President to open a new negotiation with His Britannic Majesty's Government for the ascertainment of the boundary between the possessions of the two powers on the northeastern frontier of the United States according to the definitive treaty of peace. Of the negotiation subsequent to this event it is deemed proper to take a more particular notice.
In July the result of the action of the Senate in relation to the award was communicated to Mr. Bankhead, the British charge d'affaires, and he was informed that the resolution had been adopted in the conviction that the sovereign arbiter, instead of deciding the questions submitted to him, had recommended a specified compromise of them. The Secretary of State at the same time expressed the desire of the President to enter into further negotiation in pursuance of the resolution of the Senate, and proposed that the discussion should be carried on at Washington. He also said that if the plenipotentiaries of the two parties should fail in this new attempt to agree upon the line intended by the treaty of 1783 there would probably be less difficulty than before in fixing a convenient boundary, as measures were in progress to obtain from the State of Maine more extensive powers than were before possessed, with a view of overcoming the constitutional obstacles which had opposed themselves to such an arrangement; and he further intimated that the new negotiation would naturally embrace the important question of the navigation of the river St. John.
In April, 1833, Sir Charles R. Vaughan, the British minister, addressed a note to the Department of State, in which, hopeless of finding out by a new negotiation an assumed line of boundary which so many attempts had been fruitlessly made to discover, he wished to ascertain, first, the principle of the plan of boundary which the American Government appeared to contemplate as likely to be more convenient to both parties than those hitherto discussed, and, secondly, whether any, and what, arrangement for avoiding the constitutional difficulty alluded to had yet been concluded with the State of Maine. Satisfactory answers on these points, he said, would enable the British Government to decide whether it would entertain the proposition, but His Majesty's Government could not consent to embarrass the negotiation respecting the boundary by mixing up with it a discussion regarding the navigation of the St. John as an integral part of the same question or as necessarily connected with it.
In reply to this note, Mr. Livingston, under date of the 30th of April, stated that the arrangement spoken of in his previous communication, by which the Government of the United States expected to be enabled to treat for a more convenient boundary, had not been effected, and that as the suggestion in regard to the navigation of the St. John was introduced merely to form a part of the system of compensations in negotiating for such a boundary if that of the treaty should be abandoned, it would not be insisted on.
The proposition of the President for the appointment of a joint commission, with an umpire, to decide upon all points on which the two Governments disagree was then presented. It was accompanied by a suggestion that the controversy might be terminated by the application to it of the rule for surveying and laying down the boundaries of tracts and of countries designated by natural objects, the precise situation of which is not known, viz, that the natural objects called for as terminating points should first be found, and that the lines should then be drawn to them from the given points with the least possible departure from the course prescribed in the instrument describing the boundary. Two modes were suggested in which such commission might be constituted: First, that it should consist of commissioners to be chosen in equal numbers by the two parties, with an umpire selected by some friendly sovereign from among the most skillful men in Europe; or, secondly, that it should be entirely composed of such men so selected, to be attended in the survey and view of the country by agents appointed by the parties. This commission, it was afterwards proposed, should be restricted to the simple question of determining the point designated by the treaty as the highlands which divide the waters that fall into the Atlantic from those which flow into the St. Lawrence; that these highlands should be sought for in a north or northwest direction from the source of the St. Croix, and that a straight line to be drawn from the monument at the head of that river to those highlands should be considered, so far as it extends, as a part of the boundary in question. The commissioners were then to designate the course of the line along the highlands and to fix on the northwesternmost head of the Connecticut River.
In a note of 31st May the British minister suggested that this perplexed and hitherto interminable question could only be set at rest by an abandonment of the defective description of boundary contained in the treaty, by the two Governments mutually agreeing upon a conventional line more convenient to both parties than those insisted upon by the commissioners under the fifth article of the treaty of Ghent, or that suggested by the King of the Netherlands.
Mr. McLane remarked in reply (June 5) that the embarrassments in tracing the treaty boundary had arisen more from the principles assumed and from the manner of seeking for it than from any real defect in the description when properly understood; that in the present state of the business the suggestion of Sir Charles R. Vaughan would add to the existing difficulties growing out of a want of power in the General Government under the Constitution of the United States to dispose of territory belonging to either of the States of the Union without the consent of the State; that as a conventional line to the south of and confessedly variant from that of the treaty would deprive the State of Maine of a portion of the territory she claims, it was not probable that her consent to it would be given while there remained a reasonable prospect of discovering the line of the treaty of 1783, and that the President would not be authorized, after the recent proceedings in the Senate, to venture now to agree upon a conventional line without such consent, whilst the proposition submitted in April afforded not only a fair prospect, but in his opinion the certain means, of ascertaining the boundary called for by the treaty of 1783 and of finally terminating all the perplexities which have encompassed that subject.
In February, 1834, Sir Charles R. Vaughan, after submitting certain observations intended to controvert the positions assumed by the United States on the subject of the constitutional difficulty by which the American Government was prevented from acquiescing in the arrangement recommended by the King of the Netherlands for the settlement of the boundary in the neighborhood of the St. John, asserted that the two Governments bound themselves by the convention of September, 1827, to submit to an arbiter certain points of difference relative to the boundary between the American and British dominions; that the arbiter was called on to determine certain questions, and that if he has determined the greater part of the points submitted to him his decision on them ought not to be set aside merely because he declares that one remaining point can not be decided in conformity with the words of the treaty of 1783, and therefore recommends to the parties a compromise on that particular point; that the main points referred to the arbiter were three in number; that upon the second and third of these he made a plain and positive decision; that upon the remaining point he has declared that it is impossible to find a spot or to trace a line which shall fulfill all the conditions required by the words of the treaty for the northwest angle of Nova Scotia and for the highlands along which the boundary from that angle is to be drawn; yet that in the course of his reasoning upon this point he has decided several questions connected with it upon which the two parties had entertained different views, viz:
"First. The arbiter expresses his opinion that the term highlands' may properly be applied not only to a hilly and elevated country, but to a tract of land which, without being hilly, divides waters flowing in different directions, and consequently according to this opinion, the highlands to be sought for are not necessarily a range of mountains, but rather the summit level of the country.
"Second. The arbiter expresses his opinion that an inquiry as to what were the ancient boundaries of the North American Provinces can be of no use for the present purpose, because those boundaries were not maintained by the treaty of 1783 and had in truth never been distinctly ascertained and laid down.
"Third. The arbiter declares that the northwest angle of Nova Scotia mentioned in the treaty of 1783 is not a point which was then known and ascertained; that it is not an angle which is created by the intersection of any lines of boundary at that time acknowledged as existing, but that it is an angle still to be found and to be created by the intersection of new lines, which are hereafter to be drawn in pursuance of the stipulations of the treaty; and further, that the nature of the country eastward of the said angle affords no argument for laying that angle down in one place rather than in another.
"Fourth. He states that no just argument can be deduced for the settlement of this question from the exercise of the rights of sovereignty over the fief of Madawaska and over the Madawaska settlement.
"Fifth. He declares that the highlands contemplated in the treaty should divide immediately, and not mediately, rivers flowing into the St. Lawrence and rivers flowing into the Atlantic, and that the word 'divide' requires contiguity of the things to be divided.
"Sixth. He declares that rivers falling into the Bay of Chaleurs and the Bay of Fundy can not be considered according to the meaning of the treaty as rivers flowing into the Atlantic, and specifically that the rivers St. John and Restigouche cannot be looked upon as answerable to the latter description.
"Seventh. He declares that neither the line of boundary claimed by Great Britain nor that claimed by the United States can be adjudged as the true line without departing from the principles of equity and justice as between the two parties."
It was the opinion of His Majesty's Government, Sir Charles alleged, that the decisions of the arbiter upon the second and third points referred to him, as well as upon the subordinate questions, ought to be acquiesced in by the two Governments, and that in any future attempt to establish a boundary, whether in strict conformity with the words of the treaty of 1783 or by agreeing to the mode of settlement recommended by the arbiter, it would be necessary to adopt these seven decisions as aground work for further proceedings; that the British Government, therefore, previously to any further negotiation, claimed from the Government of the United States an acquiescence in the decisions pronounced by the arbiter upon all those points which he had decided, and as a preliminary to any attempt to settle the remaining point by negotiation to be satisfied that the Federal Government was possessed of the necessary powers to carry into effect any arrangement upon which the two parties might agree.
With respect to the proposition made by the American Government, Sir Charles thought that the difficulty which was found insurmountable as against the line recommended by the King of the Netherlands, viz, the want of authority to agree to any line which might imply a cession of any part of the territory to which the treaty as hitherto interpreted by the United States might appear to entitle one of the component States of the Union, would be equally fatal to that suggested by Mr. Livingston, since a line drawn from the head of the St. Croix to highlands found to the westward of the meridian of that spot would not be the boundary of the treaty and might be more justly objected to by Maine and with more appearance of reason than that proposed by the arbiter.
The reply of Mr. McLane to the preceding note is dated on the 11th of March. He expressed his regret that His Britannic Majesty's Government should still consider any part of the opinion of the arbiter obligatory on either party. Those opinions, the Secretary stated, could not have been carried into effect by the President without the concurrence of the Senate, who, regarding them not only as not determining the principal object of the reference, but as in fact deciding that object to be impracticable, and therefore recommending to the two parties a boundary not even contemplated either by the treaty or by the reference nor within the power of the General Government to take, declined to give their advice and consent to the execution of the measures recommended by the arbiter, but did advise the Executive to open a new negotiation for the ascertainment of t
Martin van Buren, Special Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/201370