 |
On the part of the Americans some individuals, in contravention of this understanding, have proceeded to do acts which if followed out would change the political state of part of the disputed land. But it has not been so followed out; it is disavowed by the power whose assent is necessary to carry it into execution. It is therefore of no avail, and can have no more effect than if the same number of men had met at Madawaska and declared themselves duly elected members of the British Parliament. The act interferes with no right; it comes in actual collision with no established power. Not so the punishment of the individuals concerned. This is at once a practical decision of the question, and may lead to retaliating legal measures; for if the lieutenant-governor of New Brunswick feels himself obliged, as he says he does, to impose the authority of the law within which he thinks the boundaries of his Province, will not the same feeling incite the governor of Maine, under the same sense of duty, to pursue the like measures? And thus the fruits of moderation and mutual forbearance during so long a period will be lost for the want of perseverance in them for the short time that is now wanting to bring the controversy to an amicable close. It is therefore, sir, that I invite your interposition with his excellency the lieutenant-governor of New Brunswick to induce him to set at liberty the persons arrested, on their engagement to make no change in the state of things until the business shall be finally decided between the two Governments.
On our part, the desire of the General Government to avoid any measures tending to a change in the existing state of things on our northeast boundary has been fully and, it is believed, efficaciously expressed to the executive of the State of Maine, so that the actual relation of the State with the neighboring Province will not in future suffer any change.
I have great pleasure, sir, in renewing on this occasion the assurance of my high consideration.
EDWD. LIVINGSTON.
[Footnote 16: Omitted.]
Mr. Bankhead to Mr. Livingston.
WASHINGTON, October 20, 1831.
Hon. EDWARD LIVINGSTON, Esq., etc.:
The undersigned, His Britannic Majesty's charge d'affaires, has the honor to acknowledge the receipt of Mr. Livingston's note of the 17th instant, in answer to a representation which the undersigned thought it his duty to make to the Government of the United States upon a violation committed upon the territory at present in dispute between the two countries.
The friendly tone assumed by the Secretary of State in this communication, the discountenance on the part of the General Government of the proceedings which were complained of, and the determination of the President to cause the strictest forbearance to be maintained until the question of boundary shall be settled have been received by the undersigned with great satisfaction, and it is in the same spirit of harmony that he has addressed a letter to His Majesty's lieutenant-governor of New Brunswick, inclosing a copy of Mr. Livingston's note, for his excellency's serious consideration.
The undersigned has the honor to renew to Mr. Livingston the assurance of his distinguished consideration.
CHARLES BANKHEAD.
Mr. Bankhead to Mr. Livingston.
WASHINGTON, October 22, 1831.
Hon. EDWARD LIVINGSTON, etc.:
The undersigned, His Britannic Majesty's charge d'affaires, has the honor to transmit to the Secretary of State of the United States the copy of a letter[17] from His Majesty's lieutenant-governor of New Brunswick, inclosing a deposition[17] made before a justice of the peace of that Province in support of a charge against certain inhabitants of Houlton, in the State of Maine, for having made a forcible inroad on the territory of His Majesty in search of an Irishman (an inhabitant of Woodstock, New Brunswick) who committed a most violent outrage against the constituted authorities at Houlton.
The lieutenant-governor deprecates in the strongest manner the infamous conduct of the individual in question, and is perfectly ready to exert the utmost rigor of the laws against him; but his excellency at the same time protests against the conduct of those persons who have thus attempted to interfere with the jurisdiction of the laws in His Majesty's possessions.
Under these circumstances the undersigned has to request that Mr. Livingston will be good enough to cause the necessary inquiries to be instituted into this transaction, and upon the charges being clearly proved that he will make such a representation to the authorities of the State of Maine as shall prevent the recurrence of a similar irregularity in future.
The undersigned has the honor to renew to Mr. Livingston the assurances of his distinguished consideration.
CHARLES BANKHEAD.
[Footnote 17: Omitted.]
Mr. Bankhead to Mr. Livingston.
WASHINGTON, November 25, 1831.
Hon. EDWARD LIVINGSTON, etc.:
The undersigned, His Britannic Majesty's charge d'affaires, has the honor to refer the Secretary of State of the United States to the correspondence which took place in the month of October upon the subject of violations which had been committed upon the territory at present in dispute between Great Britain and the United States, and the measures which His Majesty's lieutenant-governor of New Brunswick deemed it expedient to adopt thereupon.
The trial of these persons took place at Frederickton, and they were sentenced by the supreme court of the Province to fine and imprisonment.
At the time the undersigned communicated to the Government of the United States the decision which the authorities of New Brunswick had felt it necessary to adopt upon this occasion he expressed the deep regret of the governor of that Province that the conduct of these individuals was such as to compel his excellency to pursue a course so uncongenial to his own feelings and at variance with the harmony which subsists between the Governments of Great Britain and the United States.
The Secretary of State upon receiving this communication expressed to the undersigned the earnest desire of the President, upon a total disavowal on the part of the General Government of the proceedings of the persons implicated in this transaction, that His Majesty's lieutenant-governor might consider himself authorized to exercise a prerogative in their favor and to remit the sentence which had been pronounced against them.
No time was lost in submitting Mr. Livingston's note to the consideration of Sir Archibald Campbell, and the undersigned has the greatest satisfaction in acquainting him that his excellency fully acquiesced in the desire manifested by the President of the United States. The undersigned can not better fulfill the wishes of Sir Archibald Campbell, which are so much in accordance with that spirit of good will which happily subsists between the two countries and which characterizes their relations with each other, than by transmitting to the Secretary of State a copy of the dispatch which he yesterday received from that officer, and which he feels assured will be received by the President as an earnest of his uninterrupted good feeling toward the Government and people of the United States.
The undersigned has the honor to renew to Mr. Livingston the assurance of his highest consideration,
CHARLES BANKHEAD.
Sir Archibald Campbell to Mr. Bankhead.
GOVERNMENT HOUSE,
Frederickton, November 8, 1831.
SIR: I had this morning the honor to receive your letter of the 20th ultimo, which, with its inclosures, are in every respect so satisfactory that I did not lose a moment in giving effect to the wishes therein expressed by exercising that prerogative so congenial to my own feelings, whether viewed in the extension of mercy or in the gratifying anticipation of such a measure being received as an earnest of my most anxious desire, as far as rests with me (consistent with my public duties), to preserve inviolate the harmony and good understanding so happily existing between the two Governments. The prisoners, Barnabas Hunnewell, Jesse Wheelock, and Daniel Savage, are released; and I have taken it upon myself, knowing that such a measure will be fully sanctioned by my Government, to remit the fines imposed by the supreme court of this Province, as already communicated to you by Lieutenant-Colonel Snodgrass—an act that I trust will not fail in being duly appreciated when it is known that the above-mentioned individuals did, with several others, follow up their first proceedings by acts of much more serious aggression, for which they stood charged under another (untried) indictment. However, everything connected therewith is now corrected.
You will see with what readiness and satisfaction I have received and adopted your kind advice, for which accept of my sincere thanks, and believe me to remain, sir, etc.,
ARCHIBALD CAMPBELL,
Lieutenant-Governor.
Mr. Livingston to Mr. Bankhead.
DEPARTMENT OF STATE,
Washington, November 28, 1831.
CHARLES BANKHEAD, Esq., etc.:
The undersigned, Secretary of State, etc., has the honor to acknowledge the receipt of a note from Mr. Bankhead, His Britannic Majesty's charge d'affaires, under date of the 25th instant, accompanied by a copy of a letter from Sir A. Campbell, the lieutenant-governor of the Province of New Brunswick, by both of which the Secretary of State is informed that the citizens of the United States lately under prosecution at Frederickton for acts done in the territory now possessed by Great Britain within the country claimed both by that power and the United States, have been set at liberty, in accordance with the suggestions made in the former correspondence between Mr. Bankhead and the Secretary of State.
Mr. Bankhead's note, with its inclosure, has been laid before the President, who has instructed the undersigned to express his satisfaction at the prompt manner in which his suggestions have been complied with, and to say that he considers it as a proof of the disposition of His Britannic Majesty's officers to preserve the harmony that so happily subsists between the two Governments.
The undersigned renews to Mr. Bankhead the assurance of his high consideration.
EDWARD LIVINGSTON.
Sir Charles R. Vaughan to Mr. McLane.
WASHINGTON, October 20, 1833.
Hon. LOUIS McLANE, etc.:
The undersigned, His Britannic Majesty's envoy extraordinary and minister plenipotentiary, has the honor to lay before the Secretary of State of the United States a copy of a letter[18] which he has received from His Excellency Sir Archibald Campbell, His Majesty's lieutenant-governor of New Brunswick, and to call his attention to the conduct of certain land agents of the States of Maine and Massachusetts in the territory in dispute between Great Britain and the United States.
It appears by the report contained in Sir Archibald Campbell's letter that land agents of Maine and Massachusetts have been holding out inducements to persons of both countries to cut pine timber on the disputed territory on condition of paying to them 2 shillings and 6 pence the ton, and that they have entered into contracts for opening two roads which will intersect the Roostook River.
As it is the declared will and mutual interest of the Governments of Great Britain and of the United States to preserve the disputed territory in its present state and to avoid all collision pending the settlement of the boundary question, the undersigned is convinced that it is sufficient to insure the prompt interference of the Government of the United States to put a stop to the proceedings of these land agents to state the conduct complained of.
The undersigned has the honor to renew to Mr. McLane the assurance of his most distinguished consideration.
CHAS. R. VAUGHAN
[Footnote 18: Omitted.]
Mr. McLane to Sir Charles R. Vaughan.
DEPARTMENT OF STATE,
Washington, October 23, 1833.
Right Hon. SIR CHARGES R. VAUGHAN, G.C.H.,
Envoy Extraordinary and Minister Plenipotentiary of His Britannic Majesty:
The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note of Sir Charles R. Vaughan, envoy extraordinary and minister plenipotentiary of His Britannic Majesty, of the 20th instant, accompanied by a copy of a letter from Sir Archibald Campbell, lieutenant-governor of New Brunswick, to Sir Charles R. Vaughan, and also a letter from J.A. Maclauchlan to the lieutenant-governor of New Brunswick, complaining of the "conduct of certain land agents of the States of Maine and Massachusetts in the territory in dispute between the United States and Great Britain."
The undersigned is instructed to state that it would be a source of regret to the President should this complaint prove to be well founded, and that he has caused a copy of Sir Charles's note and of the accompanying papers promptly to be communicated to the governors of Maine and Massachusetts, in order that the necessary steps may be taken to enforce a due observance of the terms of the existing arrangement between the Government of the United States and that of Great Britain in regard to the disputed territory.
The undersigned avails himself of the occasion to renew to Sir Charles R. Vaughan the assurance of his distinguished consideration.
LOUIS McLANE
Sir Charles R. Vaughan to Mr. McLane.
WASHINGTON, December 17, 1833.
Hon. LOUIS McLANE, etc.:
The undersigned, His Britannic Majesty's envoy extraordinary and minister plenipotentiary, regrets that a letter received from His Majesty's lieutenant-governor of New Brunswick should again require him to ask the intervention of the General Government of the United States to put a stop to certain proceedings of the State of Maine in the territory still in dispute between Great Britain and the United States. The inclosed letter, with the report which accompanies it,[19] shows that the State of Maine has opened a road beyond the conventional frontier, with the avowed intention of carrying it to the bank of the river St. John.
The undersigned is convinced that the Secretary of State of the United States will agree with him that the State of Maine must not be allowed to take upon herself the right to define the meaning of the treaty of 1783, and, by aggressions such as those against which the undersigned is called upon to remonstrate, to take possession, without reference to the General Government of the United States, of territory which has been so long in abeyance between the two Governments. Such conduct is calculated to lead to collisions of a distressing nature between the subjects of His Britannic Majesty and the citizens of the United States employed to assert a futile and hazardous possession which so entirely depends upon the arrangements in progress between the two Governments.
The undersigned trusts that the representation made in this note will be received by the Secretary of State in the same spirit of good will and conciliation which has hitherto characterized the conduct of the Government of the United States in all occurrences of a similar nature.
The undersigned has the honor to renew to Mr. McLane the assurance of his most distinguished consideration.
CHAS. R. VAUGHAN
[Footnote 19: Omitted.]
Mr. McLane to Sir Charles R. Vaughan.
DEPARTMENT OF STATE,
Washington, December 21, 1833.
Right Hon. SIR CHARLES R. VAUGHAN, G.C.H.,
Envoy Extraordinary and Minister Plenipotentiary of His Britannic Majesty:
The undersigned, Secretary of State, has the honor to acknowledge the receipt of the note addressed to him on the 17th instant by Sir Charles R. Vaughan, His Britannic Majesty's envoy extraordinary and minister plenipotentiary, requesting the intervention of the Government of the United States to put a stop to certain proceedings of the State of Maine in the territory still in dispute between Great Britain and the United States.
The proceedings referred to appear, by the letter of the lieutenant-governor of New Brunswick and the report of the officer acting on the part of Great Britain as warden of the disputed territory (copies of which accompanied Sir Charles R. Vaughan's note), to be the construction of a road to the Restook River, passing, as is alleged, through 15 miles of the disputed territory, and supposed by the warden to be intended to intersect the St. John River in the Madawaska settlement.
The undersigned is happy to have it in his power to afford at once such explanations upon this subject as he trusts may be satisfactory. By a communication received from the governor of Maine, in answer to a representation recently made by Sir Charles R. Vaughan concerning other alleged encroachments on the disputed territory, it will be seen that no part of the road now constructing by that State is believed to be within the territory of which the British Government has ever been in the actual possession since the treaty of 1783, and that it is not designed to extend the road beyond the Aroostook. The apprehensions entertained of its being extended to the St. John River in the Madawaska settlement appear, therefore, to be groundless, and, if the views of the governor of Maine as to the locality of the road be correct, it would seem that its construction can afford no just cause of complaint, as it is not supposed that such improvements made by either party within that part of the territory which has been in its possession, or so considered, since the treaty of 1783 are contrary to the spirit of the existing understanding between the two Governments. It will be seen, moreover, as well by the communication from the governor of Maine as by one received from the governor of Massachusetts on the same occasion, that a conciliatory and forbearing disposition prevails on their part, and that no measures will be taken or any acts authorized by them which may justly be considered as a violation of the understanding in regard to the disputed territory.
The undersigned has nevertheless been directed by the President to transmit copies of Sir Charles R. Vaughan's note and its inclosures to the governors of Maine and Massachusetts, and to repeat to their excellencies his earnest desire that as far as depends on them no departure from the understanding between the two Governments may be permitted.
In regard to the complaint heretofore made by Sir Charles R. Vaughan, upon the representations of the lieutenant-governor of New Brunswick and the warden of the disputed territory, as to the cutting and sale of timber under the authority of the land agents of Maine and Massachusetts, the undersigned begs leave to refer to the communications from the governors of those States already mentioned, copies of which are now transmitted, by which it appears that the conduct of those agents has furnished no just cause of dissatisfaction, but that, on the contrary, it is alleged that His Britannic Majesty's officers of the Province of New Brunswick, by the seizure and sale of timber cut by trespassers on the Aroostook, and afterwards in the rightful custody of the agent of the State of Massachusetts, have been the first to violate the existing understanding upon this subject.
These complaints on both sides, arising, as the undersigned believes, from acts which do not on either side indicate an intention to disregard the existing understanding, but are attributable to the unsettled state of the boundary question, and which should therefore be viewed with mutual forbearance, furnish increased reason for a speedy adjustment of that interesting matter; and the President looks with great solicitude for the answer, which is daily expected, from the British Government to the proposition submitted on the part of the United States, in the hope that it may soon set all those difficulties at rest.
The undersigned has the honor to renew to Sir Charles R. Vaughan the assurance of his distinguished consideration.
LOUIS McLANE.
EXECUTIVE DEPARTMENT OF MASSACHUSETTS,
November 1, 1833.
Hon. LOUIS McLANE,
Secretary of State of the United States.
SIR: I have to acknowledge the honor of the receipt of your letter of the 23d of October, covering a copy of a note addressed to you by Sir Charles R. Vaughan, envoy extraordinary and minister plenipotentiary of His Britannic Majesty, accompanied also by copies of certain documents conveying complaints on the part of the authorities of His Majesty's Province of New Brunswick "of the conduct of certain land agents of the States of Maine and Massachusetts on the territory in dispute between the United States and Great Britain."
Permit me to assure you that I shall lose no time in making inquiry of the land agent of this Commonwealth into the supposed occasion of the complaints of His Majesty's provincial officers, and in transmitting to the Department of State such information as I may receive in reply.
Prejudicial as the delay in the settlement of this long-vexed subject of boundary is to the rights of property which Massachusetts claims in the disputed territory, and impatient as both the government and the people have become at the unreasonableness and pertinacity of the adversary pretensions and with the present state of the question, yet the executive of this Commonwealth will not cease to respect the understanding which has been had between the Governments of the two countries, that no act of wrong to the property of either shall be committed during the pending of measures to produce an amicable adjustment of the controversy.
In the meantime, I can not but earnestly protest against the authority of any appointment on the behalf of His Majesty's Government which may be regarded as a claim to the executive protection of this property or be deemed an acquiescence on the part of the United States in an interference, under color of a "wardenship of the disputed territory," with the direction to its improvement which the governments of Massachusetts and Maine, respectively, may see fit to give to their agents. The rights of soil and jurisdiction over it are in the States, and forbearance to the exercise of these rights for a season, from mere prudential considerations, a respectful regard to the wishes of the General Government, or amity toward a foreign nation is not to be construed into a readiness to surrender them upon the issue of any proposed negotiation.
I have the honor to be, sir, with sentiments of the highest respect, your obedient servant,
LEVI LINCOLN.
EXECUTIVE DEPARTMENT OF MAINE,
Augusta, November 23, 1833.
Hon. LOUIS McLANE,
Secretary of State of the United States, Washington.
SIR: I have the honor to acknowledge the receipt of your letter of the 23d of October last, communicating a copy of a note from Sir Charles R. Vaughan, accompanied with a copy of a letter from Sir Archibald Campbell, lieutenant-governor of New Brunswick, to Sir Charles R. Vaughan, and also of a letter from Lieutenant J.A. Maclauchlan to Sir Archibald Campbell, complaining of the conduct of the land agents of the States of Maine and Massachusetts in the territory in dispute between the United States and Great Britain.
In compliance with your request to be furnished with information in relation to this subject, I reply that by a resolve of the legislature of this State passed March 30, 1831, "the land agent of this State, in conjunction with the land agent of the Commonwealth of Massachusetts, is authorized and empowered to survey, lay out, and make a suitable winter road, or cause the same to be done, from the mouth of the Matawamkeag, a branch of the Penobscot River, in a northerly direction, so as to strike the Aroostook River on or near the line dividing the sixth and seventh ranges of townships." The same resolve authorizes the land agents to lay out and make, or cause to be made, a winter road from the village of Houlton, in a westerly direction, to intersect the road to the Aroostook River at some point most convenient for traveling and most for the interest of the State. By a subsequent resolve, passed March 8, 1832, the authority given to the land agents was enlarged so as to authorize them "to locate and survey the Aroostook road so that it may strike the Aroostook River at any place between the west line of the third range and the east line of the sixth range of townships west of the east line of the State." The first of these roads has been surveyed and located, and much the greater part of it lies within the undisputed limits of this State south of the sources of the Penobscot River, and it is believed that no part of it lies within territory of which the British Government has ever been in the actual possession since the treaty of 1783. A portion of this road only has yet been opened, and I have no information that any part of it has been opened over territory claimed by the British, although it is contemplated to extend it to the Aroostook when it can be done consistently with the public interest. The second road described in the resolve of March 30, 1831, is wholly within the undisputed limits of this State.
A report of the recent proceedings of the land agent in making these roads and disposing of the timber on the lands of the State has not been received, and his late sickness and death have rendered it impossible at this time to obtain a detailed statement of all that has been done in his official capacity. But it can not be presumed that he has in any particular exceeded his instructions (copies of which are herewith transmitted[20]), or, in the discharge of his official duties, taken any measures or authorized any acts to be done which could justly be considered as a violation of any known provision of the existing arrangement between the Governments of the United States and Great Britain in regard to the disputed territory.
With high consideration, I have the honor to be, sir, your obedient servant,
SAML. E. SMITH.
[Footnote 20: Omitted.]
Sir Charles R. Vaughan to Mr. McLane.
WASHINGTON, December 23, 1833.
Hon. LOUIS McLANE, etc.:
The undersigned, His Britannic Majesty's envoy extraordinary and minister plenipotentiary, has the honor to acknowledge the receipt of the note of the Secretary of State of the United States, in answer to the representation which he was called upon to make respecting proceedings of the States of Massachusetts and Maine in the disputed territory.
To understand correctly the bearings of the roads which those States have resolved to construct requires a more accurate knowledge of the topography of the country through which they are to pass than the undersigned possesses, but he will not fail to transmit a copy of Mr. McLane's note, together with its inclosures, to His Majesty's lieutenant-governor of New Brunswick. In the meantime the undersigned begs leave to observe that the letter from the executive of Maine states that one of the roads surveyed and located lies, for the greater part of it, within the undisputed limits of that State, although it is contemplated to extend it to the Aroostook River. The land agent of Massachusetts is aware that the road from the river Matawamkeag to the Aroostook is the one that has given rise to complaint, and which, he observes, "is now nearly completed." As the Aroostook River, from its source till it falls into the St. John, flows exclusively through the disputed territory, to reach it by a road from the State of Maine must cause an encroachment and be considered an attempt to assume a right of possession in territory which has never yet been set apart from the original possession of Great Britain, on account of the difficulties of ascertaining the boundary according to the treaty of 1783.
With regard to the cutting down and sale of timber, the justification of the land agent at Boston will be submitted to Sir Archibald Campbell, and the undersigned is sure that the grievance complained of (taking away timber which had been seized by the agent from Massachusetts) will be attended to.
The undersigned receives with great satisfaction the assurances of Mr. McLane that "a conciliatory and forbearing disposition prevails on the part of Massachusetts and Maine, and that no measure will be taken or any acts authorized by them which may justly be considered as a violation of the understanding in regard to the disputed territory;" and he can not conclude without begging leave to acknowledge the readiness with which the President directed inquiries to be made and the desire which he has shewn on this and every similar occasion to prevent any encroachment on the disputed territory pending the settlement of the boundary now in progress between the two Governments.
The undersigned has the honor to assure Mr. McLane of his most distinguished consideration.
CHAS. R. VAUGHAN.
Sir Charles R. Vaughan to Mr. McLane.
WASHINGTON, February 28, 1834.
Hon. LOUIS McLANE, etc.:
The undersigned, His Britannic Majesty's envoy extraordinary and minister plenipotentiary, has the honor to communicate to the Secretary of State of the United States the explanation which he has received from the lieutenant-governor of New Brunswick of a transaction complained of by the land agent of Massachusetts in a report communicated to the undersigned in a note from Mr. McLane dated 21st December last.
The complaint arose out of the seizure of timber cut down without authority upon the disputed territory, and which, after having been seized in the first instance by the land agent of Massachusetts, was taken possession of and sold by the British agent intrusted with the preservation of the disputed territory on the northeastern frontier of the United States.
The explanation of this transaction is contained in an extract of a letter to the undersigned from the lieutenant-governor of New Brunswick and the report of Mr. Beckwith, the surveyor-general of that Province, which the undersigned has the honor to inclose in this note.[21]
The seizure of the timber in the first instance by Mr. Coffin, the land agent of Maine [Massachusetts], was the exercise of authority within the conventional frontier of the Province of New Brunswick, which could not be admitted so long as the northeastern boundary of the United States remains a subject of negotiation; and it appears that the proceeds of the sale of timber unlawfully cut down are carried to account, and the possession of them will be appropriated to the party to which the territory may be adjudged by the settlement of the boundary question.
The undersigned trusts that the explanation which he is now able to give of this transaction will prove satisfactory to the Government of the United States.
The undersigned has the honor to renew to Mr. McLane the assurance of his most distinguished consideration.
CHAS. R. VAUGHAN
[Footnote 21: Omitted.]
Mr. McLane to Sir Charles R. Vaughan.
DEPARTMENT OF STATE,
Washington, March 4, 1834.
Right Hon. SIR CHARLES R. VAUGHAN, G.C.H.,
Envoy Extraordinary, etc.
SIR: I have the honor to acknowledge the receipt of your note of the 28th ultimo, furnishing the explanation of the lieutenant-governor of New Brunswick of a transaction referred to by the land agent of Massachusetts in a letter addressed to his excellency the governor of that Commonwealth, and subsequently communicated to you by this Department in a note dated 21st December last, and to inform you that copies of your communication, together with the documents which accompanied it, will, by direction of the President, be transmitted without unnecessary delay to the executive of the State of Massachusetts.
I pray you to accept the assurance of my distinguished consideration.
LOUIS McLANE.
WASHINGTON, January 27, 1838.
Hon. R.M. JOHNSON,
President of the Senate.
SIR: I transmit herewith, in compliance with the requirements of the second section of the act of March 3, 1837, making appropriations for the Indian Department, a communication from the War Department, accompanied by a copy of the report of the agents appointed to inquire what depredations had been committed by the Seminole and Creek Indians on the property of citizens of Florida, Georgia, and Alabama.
M. VAN BUREN.
[The same message was addressed to the Speaker of the House of Representatives.]
WASHINGTON CITY, February 5, 1838.
Hon. JAMES K. POLK,
Speaker of the House of Representatives.
SIR: I have the honor to transmit to you a report from the Secretary of the Navy, prepared in obedience to a resolution of the House of Representatives of the 7th December last, requiring information as to the causes which have delayed the outfit and preparation of the South Sea surveying and exploring expedition.
M. VAN BUREN.
WASHINGTON, February, 1838.
To the House of Representatives of the United States:
In compliance with the resolution of the House of Representatives of the 20th instant, I transmit a report from the Secretary of State, which is accompanied by a copy and translation of the pamphlet[22] requested in that resolution.
M. VAN BUREN.
[Footnote 22: Issued by Manuel E. de Gorostiza, formerly minister from Mexico, before his departure from the United States, containing the correspondence between the Department of State and the Mexican legation relative to the passage of the Sabine River by troops under the command of General Gaines.]
WASHINGTON, February 17, 1838.
To the Senate:
I transmit for your constitutional action articles of a treaty concluded on the 23d ultimo with the Chippewas of Saganaw, accompanied by a communication from the Secretary of War.
M. VAN BUREN.
WASHINGTON, February 17, 1838.
To the Senate:
I transmit for your consideration a communication from the Secretary of War, respecting a treaty now before you with the Stockbridge and Munsee Indians.
M. VAN BUREN.
WASHINGTON, March, 1838.
Hon. J.K. POLK,
Speaker of the House of Representatives.
SIR: The inclosed report and accompanying papers from the Secretary of War contain all the information required by the resolution of the House of Representatives of the 5th instant, respecting the present state of the campaign in Florida and the disposition of the Indians to treat for peace.
Very respectfully, your most obedient servant,
M. VAN BUREN.
WASHINGTON, March 12, 1838.
To the House of Representatives:
I transmit for the consideration of Congress a report from the Secretary of State, with the accompanying documents, relative to an application made by the minister of France in behalf of Captain Beziers for remuneration for services in saving the captain and crew of an American vessel wrecked in the bay of Cadiz in the year 1825.
I am happy to evince my high sense of the humane and intrepid conduct of Captain Beziers by presenting his case to Congress, to whom alone it belongs to determine upon the expediency of granting his request.
M. VAN BUREN.
WASHINGTON, March 13, 1838.
The SPEAKER OF THE HOUSE OF REPRESENTATIVES:
In compliance with a resolution of the House of Representatives of the 17th of February, I transmit a report[23] of the Secretary of State, with the accompanying documents, which contain the information requested.
M. VAN BUREN.
[Footnote 23: Relating to a ship canal across the Isthmus of Darien.]
WASHINGTON, March 14, 1838.
The PRESIDENT OF THE SENATE:
I transmit to the Senate a treaty of commerce and navigation between the United States and His Majesty the King of Greece, concluded at London on the 22d day of December last, together with a copy of the documents relating to the negotiation of the same, for the constitutional consideration of the Senate in reference to its ratification.
M. VAN BUREN.
WASHINGTON, March 15, 1838.
To the House of Representatives of the United States:
In compliance with the resolution of the House of Representatives of the 5th instant, I transmit a report[24] from the Secretary of State, to whom the resolution was referred, with the documents by which the said report was accompanied.
M. VAN BUREN.
[Footnote 24: Relating to the prosecution of the claim of the United States to the bequest made by James Smithson.]
WASHINGTON, March, 1838.
To the House of Representatives of the United States:
I transmit a copy and translation of a letter from Mr. Pontois, the minister plenipotentiary from France to this Government, addressed to the Secretary of State, and communicating a memorial to me from the trustees of the former house of Lafitte & Co., of Paris, complaining of the rejection of a claim preferred in behalf of that house before the commissioners under the convention with France of the 4th of July, 1831, and asking redress.
The commission created by the act for carrying that convention into effect has expired. The fund provided by it has been distributed among those whose claims were admitted. The Executive has no power over the subject. If the memorialists are entitled to relief, it can be granted by Congress alone, to whom, in compliance with the request of the trustees, that question is now submitted for decision.
M. VAN BUREN.
WASHINGTON, March 19, 1838.
To the House of Representatives of the United States:
I transmit a report[25] from the Secretary of State, to whom the resolution of the House of Representatives of the 5th instant was referred, with the documents by which the said report was accompanied.
M. VAN BUREN.
[Footnote 25: Relating to high duties and restrictions on tobacco imported into foreign countries from the United States, etc.]
WASHINGTON, March 20, 1838.
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.
Respectfully submitted,
JOHN FORSYTH.
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 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 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 19, 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 founded, 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 such 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 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 "4' rivers falling into the Atlantic."
The undersigned avails himself of this opportunity to renew to Mr. Fox the assurance of his distinguished consideration.
JOHN FORSYTH.
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.
JOHN FORSYTH.
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. |
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