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Special Message

March 26, 1840

To the Senate of the United States:

I transmit to the Senate herewith copies of official notes which have passed between the Secretary of State and the British minister since my last message on the subject of the resolutions of the 17th of January.


Mr. Fox to Mr. Forsyth.

WASHINGTON, March 13, 1840.

Hon. JOHN FORSYTH, etc.:

The undersigned, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary, has been instructed by his Government to make the following communication to the Secretary of State of the United States in reference to the boundary negotiation and the affairs of the disputed territory.

Her Majesty's Government have had under their consideration the official note addressed to the undersigned by the Secretary of State of the United States on the 24th of last December in reply to a note from the undersigned of the 2d of November preceding in which the undersigned protested in the name of his Government against the extensive system of aggression pursued by the people of the State of Maine within the disputed territory, to the prejudice of the rights of Great Britain and in manifest violation of the provisional agreements entered into between the authorities of the two countries at the beginning of the last year.

Her Majesty's Government have also had their attention directed to the public message transmitted by the governor of Maine to the legislature of the State on the 3d of January of the present year.

Upon a consideration of the statements contained in these two official documents, Her Majesty's Government regret to find that the principal acts of encroachment which were denounced and complained of on the part of Great Britain, so far from being either disproved or discontinued or satisfactorily explained by the authorities of the State of Maine, are, on the contrary, persisted in and publicly avowed.

Her Majesty's Government have consequently instructed the undersigned once more formally to protest against those acts of encroachment and aggression.

Her Majesty's Government claim and expect, from the good faith of the Government of the United States, that the people of Maine shall replace themselves in the situation in which they stood before the agreements of last year were signed; that they shall, therefore, retire from the valley of the St. John and confine themselves to the valley of the Aroostook; that they shall occupy that valley in a temporary manner only, for the purpose, as agreed upon, of preventing depredations; and that they shall not construct fortifications nor make roads or permanent settlements.

Until this be done by the people of the State of Maine, and so long as that people shall persist in the present system of aggression, Her Majesty's Government will feel it their duty to make such military arrangements as may be required for the protection of Her Majesty's rights. And Her Majesty's Government deem it right to declare that if the result of the unjustifiable proceedings of the State of Maine should be collision between Her Majesty's troops and the people of that State the responsibility of all the consequences that may ensue therefrom, be they what they may, will rest with the people and Government of the United States.

The undersigned has been instructed to add to this communication that Her Majesty's Government are only waiting for the detailed report of the British commissioners recently employed to survey the disputed territory, which report it was believed would be completed and delivered to Her Majesty's Government by the end of the present month, in order to transmit to the Government of the United States a reply to their last proposal upon the subject of the boundary negotiation.

The undersigned avails himself of this occasion to renew to the Secretary of State of the United States the assurance of his distinguished consideration.

H. S. FOX.

Mr. Forsyth to Mr. Fox.


Washington, March 25, 1840.

HENRY S. FOX, Esq., etc.:

The undersigned, Secretary of State of the United States, acknowledges to have received Mr. Fox's communication of the 13th instant, in reference to the boundary negotiation and the affairs of the disputed territory. The information given in the closing part of it--that a reply to the last proposition of the United States upon the subject of the boundary may be expected in a short time--is highly gratifying to the President, who has, however, given directions to the undersigned, in making this acknowledgment, to accompany it with the expression of his profound regret that Mr. Fox's note is in no other respect satisfactory.

After the arrangements which in the beginning of last year were entered into on the part of the two Governments with regard to the occupation of the disputed territory, the President had indulged the hope that the causes of irritation which had grown out of this branch of the subject could have been removed. Relying on the disposition of Maine to cooperate with the Federal Government in all that could lead to a pacific adjustment of the principal question, the President felt confident that his determination to maintain order and peace on the border would be fully carried out. He looked upon all apprehensions of designs by the people of Maine to take possession of the territory as without adequate foundation, deeming it improbable that on the eve of an amicable adjustment of the question any portion of the American people would without cause and without object jeopard the success of the negotiation and endanger the peace of the country. A troublesome, irritating, and comparatively unimportant, because subordinate, subject being thus disposed of, the President hoped that the parties would be left free at once to discuss and finally adjust the principal question. In this he has been disappointed. While the proceedings of Her Majesty's Government at home have been attended with unlooked for delays, its attention has been diverted from the great subject in controversy by repeated complaints imputing to a portion of the people of the United States designs to violate the engagements of their Government--designs which have never been entertained, and which Mr. Fox knows would receive no countenance from this Government.

It is to be regretted that at this late hour so much misapprehension still exists on the side of the British Government as to the object and obvious meaning of the existing arrangements respecting the disputed territory. The ill success which appears to have attempted the efforts made by the undersigned to convey through Mr. Fox to Her Majesty's Government more correct impressions respecting them calls for a recurrence to the subject, and a brief review of the correspondence which has grown out of it may tend to remove the erroneous views which prevail as to the manner in which the terms of the arrangements referred to have been observed.

As Mr. Fox had no authority to make any agreement respecting the exercise of jurisdiction over the disputed territory, that between him and the undersigned of the 27th of February, 1839. had for its object some provisional arrangement for the restoration and preservation of peace in the territory. To accomplish this object it provided that Her Majesty's officers should not seek to expel by military force the armed party which had been sent by Maine into the district bordering on the Restook River, and that, on the other hand, the government of Maine would voluntarily and without needless delay withdraw beyond the bounds of the disputed territory any armed force then within them. Besides this, the arrangement had other objects--the dispersion of notorious trespassers and the protection of public property from depredation. In case future necessity should arise for this, the operation was to be conducted by concert, jointly or separately, according to agreement between the governments of Maine and New Brunswick.

In this last-mentioned respect the agreement looked to some further arrangement between Maine and New Brunswick. Through the agency of General Scott one was agreed to on the 23d and 25th of March following, by which Sir John Harvey bound himself not to seek, without renewed instructions to that effect from his Government, to take military possession of the territory or to expel from it by military force the armed civil posse or the troops of Maine. On the part of Maine it was agreed by her governor that no attempt should be made, without renewed instructions from the legislature, to disturb by arms the Province of New Brunswick in the possession of the Madawaska settlements or interrupt the usual communications between that and the upper Provinces. As to possession and jurisdiction, they were to remain unchanged--each party holding, in fact, possession of part of the disputed territory, but each denying the right of the other to do so. With that understanding Maine was without unnecessary delay to withdraw her military force, leaving only, under a land agent, a small civil posse, armed or unarmed, to protect the timber recently cut and to prevent further depredations.

In the complaints of infractions of the agreements by the State of Maine addressed to the undersigned Mr. Fox has assumed two positions which are not authorized by the terms of those agreements: First. Admitting the right of Maine to maintain a civil posse in the disputed territory for the purposes stated in the agreement, he does so with the restriction that the action of the posse was to be confined within certain limits; and, second, by making the advance of the Maine posse into the valley of the Upper St. John the ground of his complaint of encroachment upon the Madawaska settlement, he assumes to extend the limits of that settlement beyond those it occupied at the date of the agreement.

The United States can not acquiesce in either of these positions.

In the first place, nothing is found in the agreement subscribed to by Governor Fairfield and Sir John Harvey defining any limits in the disputed territory within which the operations of the civil posse of Maine were to be circumscribed. The task of preserving the timber recently cut and of preventing further depredations within the disputed territory , was assigned to the State of Maine after her military force should have been withdrawn from it, and it was to be accomplished by a civil posse, armed or unarmed, which was to continue in the territory and to operate in every part of it where its agency might be required to protect the lumber already cut and prevent further depredations, without any limitation whatever or any restrictions except such as might be construed into an attempt to disturb by arms the. Province of New Brunswick in her possession of the Madawaska settlement or interrupt the usual communication between the Provinces.

It is thus, in the exercise of a legitimate right and in the conscientious discharge of an obligation imposed upon her by a solemn compact, that the State of Maine has done those acts which have given rise to complaints for which no adequate cause is perceived. The undersigned feels confident that when those acts shall have been considered by Her Majesty's Government at home as explained in his note to Mr. Fox of the 24th of December last and in connection with the foregoing remarks they will no longer be viewed as calculated to excite the apprehensions of Her Majesty's Government that the faith of existing arrangements is to be broken on the part of the United States.

With regard to the second position assumed by Mr. Fox--that the advance of the Maine posse along the valley of the Restook to the mouth of Fish River and into the valley of the Upper St. John is at variance with the terms and spirit of the agreements--the undersigned must observe that if at variance with any of their provisions it could only be with those which secure Her Majesty's Province of New Brunswick against any attempt to disturb the possession of the Madawaska settlements and to interrupt the usual communications between New Brunswick and the upper Provinces. The agreement could only have reference to the Madawaska settlements as confined within their actual limits at the time it was subscribed. The undersigned in his note of the 24th of December last stated the reasons why the mouth of Fish River and the portion of the valley of the St. John through which it passes could in no proper sense be considered as embraced in the Madawaska settlements. Were the United States to admit the pretension set up on the part of Great Britain to give to the Madawaska settlements a degree of constructive extension that might at this time suit the purposes of Her Majesty's colonial authorities, those settlements might soon be made with like justice to embrace any portions of the disputed territory, and the right given to the Province of New Brunswick to occupy them temporarily and for a special purpose might by inference quite as plausible give the jurisdiction exercised by Her Majesty's authorities an extent which would render the present state of the question, so long as it could be maintained, equivalent to a decision on the merits of the whole controversy in favor of Great Britain. If the small settlement at Madawaska on the north side of the St. John means the whole valley of that river, if a boom across the Fish River and a station of a small posse on the south side of the St. John at the mouth of Fish River is a disturbance of that settlement, which is 25 miles below, within the meaning of the agreement, it is difficult to conceive that there are any limitations to the pretensions of Her Majesty's Government under it or how the State of Maine could exercise the preventive power with regard to trespassers, which was on her part the great object of the temporary arrangement. The movements of British troops lately witnessed in the disputed territory and the erection of military works for their protection and accommodation, of which authentic information recently received at the Department of State has been communicated to Mr. Fox, impart a still graver aspect to the matter immediately under consideration. The fact of those military operations, established beyond a doubt, left unexplained or unsatisfactorily accounted for by Mr. Fox's note of the 7th instant, continues an abiding cause of complaint on the part of the United States against Her Majesty's colonial agents as inconsistent with arrangements whose main object was to divest a question already sufficiently perplexed and complicated from such embarrassments as those with which the proceedings of the British authorities can not fail to surround it.

If, as Mr. Fox must admit, the objects of the late agreements were the removal of all military force and the preservation of the property from further spoilations, leaving the possession and jurisdiction as they stood before the State of Maine found itself compelled to act against the trespassers, the President can not but consider that the conduct of the American local authorities strongly and most favorably contrasts with that of the colonial authorities of Her Majesty's Government. While the one, promptly withdrawing its military force, has confined itself to the use of the small posse, armed as agreed upon, and has done no act not necessary to the accomplishment of the conventional objects, every measure taken or indicated by the other party is essentially military in its character, and can be justified only by a well-founded apprehension that hostilities must ensue.

With such feelings and convictions the President could not see without painful surprise the attempt of Mr. Fox, under instructions from his Government, to give to the existing state of things a character not warranted by the friendly disposition of the United States or the conduct of the authorities and people of Maine; much more is he surprised to find it alleged as a ground for strengthening a military force and preparing for a hostile collision with the unarmed inhabitants of a friendly State, pursuing within their own borders their peaceful occupations or exerting themselves in compliance with their agreements to protect the property in dispute from unauthorized spoliation.

The President wishes that he could dispel the fear that these dark forebodings can be realized. Unless Her Majesty's Government shall forthwith arrest all military interference in the question, unless it shall apply to the subject more determined efforts than have hitherto been made to bring the dispute to a certain and pacific adjustment, the misfortunes predicted by Mr. Fox in the name of his Government may most unfortunately happen.

But no apprehension of the consequences alluded to by Mr. Fox can be permitted to divert the Government and people of the United States from the performance of their duty to the State of Maine. That duty is as simple as it is imperative. The construction which is given by her to the treaty of 1783 has been again and again, and in the most solemn manner, asserted also by the Federal Government, and must be maintained unless Maine freely consents to a new boundary or unless that construction of the treaty is found to be erroneous by the decision of a disinterested and independent tribunal selected by the parties for its final adjustment. The President on assuming the duties of his station avowed his determination, all other means of negotiation failing, to submit a proposition to the Government of Great Britain to refer the decision of the question once more to a third party.

In all the subsequent steps which have been taken upon the subject by his direction he has been actuated by the same spirit. Neither his dispositions in the matter nor his opinion as to the propriety of that course has undergone any change. Should the fulfillment of his wishes be defeated, either by an unwillingness on the part of Her Majesty's Government to meet the offer of the United States in the spirit in which it is made or from adverse circumstances of any description, the President will in any event derive great satisfaction from the consciousness that no effort on his part has been spared to bring the question to an amicable conclusion, and that there has been nothing in the conduct either of the Governments and people of the United States or of the State of Maine to justify the employment of Her Majesty's forces as indicated by Mr. Fox's letter. The President can not under such circumstances apprehend that the responsibility for any consequences which may unhappily ensue will by the just judgment of an impartial world be imputed to the United States.

The undersigned avails himself, etc.


Mr. Fox to Mr. Forsyth.

WASHINGTON, March 26, 1840.

Hon. JOHN FORSYTH, etc.:

The undersigned, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary, has had the honor to receive the official note of yesterday's date addressed to him by Mr. Forsyth, Secretary of State of the United States, in reply to a note dated the 13th instant, wherein the undersigned, in conformity with instructions received from his Government, had anew formally protested against the acts of encroachment and aggression which are still persisted in by armed bands in the employment of the State of Maine within certain portions of the disputed territory.

It will be the duty of the undersigned immediately to transmit Mr. Forsyth's note to Her Majesty's Government in England, and until the statements and propositions which it contains shall have received the due consideration of Her Majesty's Government the undersigned will not deem it right to add any further reply thereto excepting to refer to and repeat, as he now formally and distinctly does, the several declarations which it has from time to time been his duty to make to the Government of the United States with reference to the existing posture of affairs in the disputed territory, and to record his opinion that an inflexible adherence to the resolutions that have been announced by Her Majesty's Government for the defense of Her Majesty's rights pending the negotiation of the boundary question offers to Her Majesty's Government the only means of protecting those rights from being in a continually aggravated manner encroached upon and violated.

The undersigned avails himself of this occasion to renew to the Secretary of State of the United States the assurance of his distinguished consideration.

H. S. FOX.

Martin van Buren, Special Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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