At the date of the treaty of Ghent, December 24, 1814, the whole of the boundary line from the source of the river St. Croix to the most northwesternmost point of the Lake of the Woods still remained unascertained, and it was therefore agreed to provide for a final adjustment thereof. For this purpose the appointment of commissioners was authorized by the fifth article of the treaty of Ghent, with power to ascertain and determine the northwest angle of Nova Scotia and the northwestern-most head of Connecticut River, in conformity with the provisions of the treaty of 1783, and to cause the boundary from the source of the river St. Croix to the river Iroquois or Cateraguy to be surveyed and marked according to the said provisions, etc. In the event of the commissioners differing, or both or either of them failing to act, the same article made provision for a reference to a friendly sovereign or state. Commissioners were appointed under this article in 1815-16, but although their sessions continued several years, they were unable to agree on any of the matters referred to them. Separate reports were accordingly made to both Governments of the two commissioners in 1822, stating the points on which they differed and the grounds upon which their respective opinions had been formed. The case having thus happened which made it necessary to refer the points of difference to a friendly sovereign or state, it was deemed expedient by the parties to regulate this reference by a formal arrangement. A convention for the purpose was therefore concluded on the 29th of September, 1827, and the two Governments subsequently agreed in the choice of His Majesty the King of the Netherlands as arbiter, who consented to act as such. The submission of the points of difference, three in number, was accordingly made to that Sovereign, and his award, or rather written opinion on the questions submitted to him, was rendered on the 10th of January, 1831. On the 7th of December following the President communicated the award of the arbiter to the Senate of the United States for the advice and consent of that body as to its execution, and at the same time intimated the willingness of the British Government to abide by it. The result was a determination on the part of the Senate not to consider the decision of His Netherland Majesty obligatory and a refusal to advise and consent to its execution. They, however, passed a resolution in June, 1832, advising the President to open a new negotiation with His Britannic Majesty's Government for the ascertainment of the boundary between the possessions of the two powers on the northeastern frontier of the United States according to the definitive treaty of peace. Of the negotiation subsequent to this event it is deemed proper to take a more particular notice.

In July the result of the action of the Senate in relation to the award was communicated to Mr. Bankhead, the British charge d'affaires, and he was informed that the resolution had been adopted in the conviction that the sovereign arbiter, instead of deciding the questions submitted to him, had recommended a specified compromise of them. The Secretary of State at the same time expressed the desire of the President to enter into further negotiation in pursuance of the resolution of the Senate, and proposed that the discussion should be carried on at Washington. He also said that if the plenipotentiaries of the two parties should fail in this new attempt to agree upon the line intended by the treaty of 1783 there would probably be less difficulty than before in fixing a convenient boundary, as measures were in progress to obtain from the State of Maine more extensive powers than were before possessed, with a view of overcoming the constitutional obstacles which had opposed themselves to such an arrangement; and he further intimated that the new negotiation would naturally embrace the important question of the navigation of the river St. John.

In April, 1833, Sir Charles R. Vaughan, the British minister, addressed a note to the Department of State, in which, hopeless of finding out by a new negotiation an assumed line of boundary which so many attempts had been fruitlessly made to discover, he wished to ascertain, first, the principle of the plan of boundary which the American Government appeared to contemplate as likely to be more convenient to both parties than those hitherto discussed, and, secondly, whether any, and what, arrangement for avoiding the constitutional difficulty alluded to had yet been concluded with the State of Maine. Satisfactory answers on these points, he said, would enable the British Government to decide whether it would entertain the proposition, but His Majesty's Government could not consent to embarrass the negotiation respecting the boundary by mixing up with it a discussion regarding the navigation of the St. John as an integral part of the same question or as necessarily connected with it.

In reply to this note, Mr. Livingston, under date of the 30th of April, stated that the arrangement spoken of in his previous communication, by which the Government of the United States expected to be enabled to treat for a more convenient boundary, had not been effected, and that as the suggestion in regard to the navigation of the St. John was introduced merely to form a part of the system of compensations in negotiating for such a boundary if that of the treaty should be abandoned, it would not be insisted on.

The proposition of the President for the appointment of a joint commission, with an umpire, to decide upon all points on which the two Governments disagree was then presented. It was accompanied by a suggestion that the controversy might be terminated by the application to it of the rule for surveying and laying down the boundaries of tracts and of countries designated by natural objects, the precise situation of which is not known, viz, that the natural objects called for as terminating points should first be found, and that the lines should then be drawn to them from the given points with the least possible departure from the course prescribed in the instrument describing the boundary. Two modes were suggested in which such commission might be constituted: First, that it should consist of commissioners to be chosen in equal numbers by the two parties, with an umpire selected by some friendly sovereign from among the most skillful men in Europe; or, secondly, that it should be entirely composed of such men so selected, to be attended in the survey and view of the country by agents appointed by the parties. This commission, it was afterwards proposed, should be restricted to the simple question of determining the point designated by the treaty as the highlands which divide the waters that fall into the Atlantic from those which flow into the St. Lawrence; that these highlands should be sought for in a north or northwest direction from the source of the St. Croix, and that a straight line to be drawn from the monument at the head of that river to those highlands should be considered, so far as it extends, as a part of the boundary in question. The commissioners were then to designate the course of the line along the highlands and to fix on the northwesternmost head of the Connecticut River.

In a note of 31st May the British minister suggested that this perplexed and hitherto interminable question could only be set at rest by an abandonment of the defective description of boundary contained in the treaty, by the two Governments mutually agreeing upon a conventional line more convenient to both parties than those insisted upon by the commissioners under the fifth article of the treaty of Ghent, or that suggested by the King of the Netherlands.

Mr. McLane remarked in reply (June 5) that the embarrassments in tracing the treaty boundary had arisen more from the principles assumed and from the manner of seeking for it than from any real defect in the description when properly understood; that in the present state of the business the suggestion of Sir Charles R. Vaughan would add to the existing difficulties growing out of a want of power in the General Government under the Constitution of the United States to dispose of territory belonging to either of the States of the Union without the consent of the State; that as a conventional line to the south of and confessedly variant from that of the treaty would deprive the State of Maine of a portion of the territory she claims, it was not probable that her consent to it would be given while there remained a reasonable prospect of discovering the line of the treaty of 1783, and that the President would not be authorized, after the recent proceedings in the Senate, to venture now to agree upon a conventional line without such consent, whilst the proposition submitted in April afforded not only a fair prospect, but in his opinion the certain means, of ascertaining the boundary called for by the treaty of 1783 and of finally terminating all the perplexities which have encompassed that subject.

In February, 1834, Sir Charles R. Vaughan, after submitting certain observations intended to controvert the positions assumed by the United States on the subject of the constitutional difficulty by which the American Government was prevented from acquiescing in the arrangement recommended by the King of the Netherlands for the settlement of the boundary in the neighborhood of the St. John, asserted that the two Governments bound themselves by the convention of September, 1827, to submit to an arbiter certain points of difference relative to the boundary between the American and British dominions; that the arbiter was called on to determine certain questions, and that if he has determined the greater part of the points submitted to him his decision on them ought not to be set aside merely because he declares that one remaining point can not be decided in conformity with the words of the treaty of 1783, and therefore recommends to the parties a compromise on that particular point; that the main points referred to the arbiter were three in number; that upon the second and third of these he made a plain and positive decision; that upon the remaining point he has declared that it is impossible to find a spot or to trace a line which shall fulfill all the conditions required by the words of the treaty for the northwest angle of Nova Scotia and for the highlands along which the boundary from that angle is to be drawn; yet that in the course of his reasoning upon this point he has decided several questions connected with it upon which the two parties had entertained different views, viz:

"First. The arbiter expresses his opinion that the term 'highlands' may properly be applied not only to a hilly and elevated country, but to a tract of land which, without being hilly, divides waters flowing in different directions, and consequently, according to this opinion, the highlands to be sought for are not necessarily a range of mountains, but rather the summit level of the country.

"Second. The arbiter expresses his opinion that an inquiry as to what were the ancient boundaries of the North American Provinces can be of no use for the present purpose, because those boundaries were not maintained by the treaty of 1783 and had in truth never been distinctly ascertained and laid down.

"Third. The arbiter declares that the northwest angle of Nova Scotia mentioned in the treaty of 1783 is not a point which was then known and ascertained; that it is not an angle which is created by the intersection of any lines of boundary at that time acknowledged as existing, but that it is an angle still to be found and to be created by the intersection of new lines, which are hereafter to be drawn in pursuance of the stipulations of the treaty; and further, that the nature of the country eastward of the said angle affords no argument for laying that angle down in one place rather than in another.

"Fourth. He states that no just argument can be deduced for the settlement of this question from the exercise of the rights of sovereignty over the fief of Madawaska and over the Madawaska settlement.

"Fifth. He declares that the highlands contemplated in the treaty should divide immediately, and not mediately, rivers flowing into the St. Lawrence and rivers flowing into the Atlantic, and that the word 'divide' requires contiguity of the things to be divided.

"Sixth. He declares that rivers falling into the Bay of Chaleurs and the Bay of Fundy can not be considered according to the meaning of the treaty as rivers flowing into the Atlantic, and specifically that the rivers St. John and Restigouche can not be looked upon as answerable to the latter description.

"Seventh. He declares that neither the line of boundary claimed by Great Britain nor that claimed by the United States can be adjudged as the true line without departing from the principles of equity and justice as between the two parties."

It was the opinion of His Majesty's Government, Sir Charles alleged, that the decisions of the arbiter upon the second and third points referred to him, as well as upon the subordinate questions, ought to be acquiesced in by the two Governments, and that in any future attempt to establish a boundary, whether in strict conformity with the words of the treaty of 1783 or by agreeing to the mode of settlement recommended by the arbiter, it would be necessary to adopt these seven decisions as a groundwork for further proceedings; that the British Government, therefore, previously to any further negotiation, claimed from the Government of the United States an acquiescence in the decisions pronounced by the arbiter upon all those points which he had decided, and as a preliminary to any attempt to settle the remaining point by negotiation to be satisfied that the Federal Government was possessed of the necessary powers to carry into effect any arrangement upon which the two parties might agree.

With respect to the proposition made by the American Government, Sir Charles thought that the difficulty which was found insurmountable as against the line recommended by the King of the Netherlands, viz., the want of authority to agree to any line which might imply a cession of any part of the territory to which the treaty as hitherto interpreted by the United States might appear to entitle one of the component States of the Union, would be equally fatal to that suggested by Mr. Livingston, since a line drawn from the head of the St. Croix to highlands found to the westward of the meridian of that spot would not be the boundary of the treaty and might be more justly objected to by Maine and with more appearance of reason than that proposed by the arbiter.

The reply of Mr. McLane to the preceding note is dated on the 11th of March. He expressed his regret that His Britannic Majesty's Government should still consider any part of the opinion of the arbiter obligatory on either party. Those opinions, the Secretary stated, could not have been carried into effect by the President without the concurrence of the Senate, who, regarding them not only as not determining the principal object of the reference, but as in fact deciding that object to be impracticable, and therefore recommending to the two parties a boundary not even contemplated either by the treaty or by the reference nor within the power of the General Government to take, declined to give their advice and consent to the execution of the measures recommended by the arbiter, but did advise the Executive to open a new negotiation for the ascertainment of the boundary in pursuance of the treaty of 1783, and the proposition of Mr. Livingston, submitted in his letter of 30th of April, 1833, accordingly proceeded upon that basis. Mr. McLane denied that a decision, much less the expression of an opinion, by the arbiter upon some of the disputed points, but of a character not to settle the real controversy, was binding upon either party, and he alleged that the most material point in the line of the true boundary, both as it respects the difficulty of the subject and the extent of territory and dominions of the respective Governments, the arbiter not only failed to decide, but acknowledged his inability to decide, thereby imposing upon both Governments the unavoidable necessity of resorting to further negotiation to ascertain the treaty boundary and absolving each party from any obligation to adopt his recommendations. The Secretary also declined to admit that of the three main points referred to the arbiter as necessary to ascertain the boundary of the treaty he had decided two. On the first point, Mr. McLane said, it was not contended a decision was made or that either the angle or the highlands called for by the treaty was found, and on the third point an opinion merely was expressed that it would be suitable to proceed to fresh operations to measure the observed latitude, etc.

The Secretary admitted that if the American proposition should be acceded to by His Majesty's Government and the commission hereafter to be appointed should result in ascertaining the true situation of the boundary called for by the treaty of 1783, that it would be afterwards necessary, in order to ascertain the true line, to settle the other two points according to which it should be traced. He therefore offered, if the American proposition should be acceded to, notwithstanding the obligatory effect of the decision of the arbiter on the point is denied, "to take the stream situated farthest to the northwest among those which fall into the northernmost of the three lakes, the last of which bears the name of Connecticut Lake, as the north-westernmost head of the Connecticut River according to the treaty of 1783;" and as it respects the third point referred to the arbiter, the line of boundary on the forty-fifth degree of latitude, but upon which he failed to decide, the President would agree, if the proposition as to the first point was embraced, to adopt the old line surveyed and marked by Valentine and Collins in 1771 and 1772.

The Secretary then proceeded to state further and insuperable objections to an acquiescence by the United States in the opinions supposed to have been pronounced by the arbiter in the course of his reasoning upon the first point submitted to him. He remarked that the views expressed by the arbiter on these subordinate matters could not be regarded as decisions within the meaning of the reference, but rather as postulates or premises, by which he arrived at the opinion expressed in regard to the point in dispute. By an acquiescence in them, therefore, as required by Great Britain, the United States would reject as erroneous the conclusion of the arbiter, whilst they would adopt the premises and reasoning by which it was attained—that the seven postulates or premises presented as necessary to be considered by the United States are but part of those on which the arbiter was equally explicit in the expression of his views, that on others his reasoning might be considered as more favorable to the pretensions of this Government, and that no reason was perceived why an acquiescence in his opinions upon them should not equally apply to all the premises assumed by him and be binding upon both parties. Mr. McLane was, however, persuaded that there was no obligation on either Government to acquiesce in the opinion of the arbiter on any of the matters involved in his premises; that such acquiescence would defeat the end of the present negotiation, and that as it appeared to be mutually conceded that the arbiter had not been able to decide upon the first and most material point so as to make a binding decision, there could certainly be no greater obligation to yield to his opinions on subordinate matters merely. The Secretary further observed that the most material point of the three submitted to the arbiter was that of the highlands, to which the President's proposition directly applies, and which are designated in the treaty of peace as the northwest angle of Nova Scotia, formed by a line drawn due north from the source of the St. Croix River to the highlands dividing the rivers, etc.; that the arbiter found it impossible to decide this point, and therefore recommended a new line, different from that called for by the treaty of 1783, and which could only be established by a conventional arrangement between the two Governments; that the Government of the United States could not adopt this recommendation nor agree upon a new and conventional line without the consent of the State of Maine; that the present negotiation proposed to ascertain the boundary according to the treaty of 1783, and for this purpose, however attained, the authority of the Government of the United States was complete; that the proposition offered by the Government of the United States promised, in the opinion of the President, the means of ascertaining the true line by discovering the highlands of the treaty, but the British Government asked the United States as a preliminary concession to acquiesce in the opinion of the arbiter upon certain subordinate facts—a concession which would in effect defeat the sole object, not only of the proposition, but of the negotiation, viz, the determination of the boundary according to the treaty of 1783 by confining the negotiation to a conventional line, to which this Government had not the authority to agree. Mr. McLane also said that if by a resort to the plain rule now recommended it should be found impracticable to trace the boundary according to the definitive treaty, it would then be time enough to enter upon a negotiation for a conventional substitute for it. He stated in answer to the suggestion of Sir Charles R. Vaughan that the objection urged against the line of the arbiter would equally lie against that suggested by Mr. Livingston; that the authority of the Government to ascertain the true line of the treaty was unquestionable, and that the American proposition, by confining the course to the natural object, would be a legitimate ascertainment of that line.

In a note dated 16th March Sir Charles R. Vaughan offered some observations upon the objections on the part of the United States to acquiesce in the points previously submitted to the American Government. He said that the adoption of the views of the British Government by the Government of the United States was meant to be the groundwork of future proceedings, whether those proceedings were to be directed to another attempt to trace the boundary as proposed by the latter or to a division of the territory depending upon the conventional line. He maintained that the arbiter had decided, as the British Government asserted, two out of the three main points submitted for his decision, viz, what ought to be considered as the northwesternmost head of the Connecticut (but which the Government of the United States is only willing to admit conditionally) and the point relative to tracing the boundary along the forty-fifth degree of latitude. This point, he observed, Mr. McLane wished to dispose of by adopting the old line of Collins and Valentine, which was suspected of great inaccuracy by both parties, and the only motive for retaining which was because some American citizens have made settlements upon territory that a new survey might throw into the possession of Great Britain. Sir Charles denied that the acquiescence of the United States in the seven subordinate points lately submitted by His Majesty's Government would confine the negotiation to a conventional line, to which the President had no authority to agree, and affirmed that not a step could be taken by the commissioners to be appointed according to Mr. Livingston's proposition, notwithstanding the unlimited discretion which it was proposed to give them, unless the two Governments agreed upon two of the seven subordinate points—"the character of the land they are to discover as dividing waters according to the treaty of 1783 and what are to be considered as Atlantic rivers." In answer to Mr. McLane's observation that on many points the reasoning of the arbiter had been more favorable to the United States than to Great Britain, and that therefore acquiescence should equally apply to all the premises assumed, Sir Charles expressed his confidence that if acquiescence in them could facilitate the object which now occupied both Governments they would meet with the most favored consideration. Sir Charles adverted to the obligations contracted under the seventh article of the convention, to the opinion of His Majesty's Government that they were binding and its willingness to abide by the award of the arbiter. He referred to the small majority by which he supposed the award to have been defeated in the Senate of the United States and a new negotiation advised to be opened, to the complicated nature of the plan proposed by the United States for another attempt to trace the boundary of the treaty, to the rejection of the points proposed by the British Government to render that plan more practicable, etc., and regretted sincerely that the award of the arbiter, which conferred upon the United States three-fifths of the disputed territory, together with Rouses Point—a much greater concession than is ever likely to be obtained by a protracted negotiation—was set aside. An alleged insuperable constitutional difficulty having occasioned the rejection of the award, Sir Charles wished to ascertain previously to any further proceedings how far the General Government had the power to carry into effect any arrangement resulting from a new negotiation, the answer of Mr. McLane upon this point having been confined to stating that should a new commission of survey, freed from the restriction of following the due north line of the treaty, find anywhere westward of that line highlands separating rivers according to the treaty of 1783, a line drawn from the monument at the source of the St. Croix would be such a fulfillment of the terms of that treaty that the President could agree to make it the boundary without reference to the State of Maine.

Mr. McLane, under date of 21st March, corrected the error into which Sir Charles had fallen in regard to the proceedings on the award in the Senate of the United States, and showed that that body not only failed, but by two repeated votes of 35 and 34 to 8 refused, to consent to the execution of the award, and by necessary implication denied its binding effect upon the United States, thus putting it out of the power of the President to carry it into effect and leaving the high parties to the submission situated precisely as they were prior to the selection of the arbiter.

The President had perceived, Mr. McLane said, in all the previous efforts to adjust the boundary in accordance with the terms of the treaty of 1783 that a natural and uniform rule in the settlement of disputed questions of location had been quite overlooked; that the chief, if not only, difficulty arose from a supposed necessity of finding highlands corresponding with the treaty description in a due north line from the monument, but it was plain that if such highlands could be anywhere discovered it would be a legal execution of the treaty to draw a line to them from the head of the St. Croix without regard to the precise course given in the treaty. It therefore became his duty to urge the adoption of this principle upon the Government of His Britannic Majesty as perhaps the best expedient which remained for ascertaining the boundary of the treaty of 1783. The Secretary could not perceive in the plan proposed anything so complicated as Sir Charles appeared to suppose. On the contrary, it was recommended to approbation and confidence by its entire simplicity. It chiefly required the discovery of the highlands called for by the treaty, and the mode of reaching them upon the principle suggested was so simple that no observations could make it plainer. The difficulty of discovering such highlands, Mr. McLane said, was presumed not to be insuperable. The arbiter himself was not understood to have found it impracticable to discover highlands answering the description of the highlands of the treaty, though unable to find them due north from the monument; and certainly it could not be more difficult for commissioners on the spot to arrive at a conclusion satisfactory to their own judgment as to the locality of the highlands.

Mr. McLane, in answer to Sir Charles's request for information on the subject, stated that the difficulty in the way of the adoption of the line recommended by the arbiter was the want of authority in the Government of the United States to agree to a line not only confessedly different from the line called for by the treaty, but which would deprive the State of Maine of a portion of territory to which she would be entitled according to the line of the definitive treaty; that by the President's proposition a commission would be raised, not to establish a new line differing from the treaty of 1783, but to determine what the true and original boundary was and in which of the two disagreeing parties the right to the disputed territory originally was; that for this purpose the authority of the original commissioners, if they could have agreed, was complete under the Ghent treaty, and that of the new commission proposed to be constituted could not be less.

Sir Charles R. Vaughan explained, under date of the 24th of March, with regard to his observation "that the mode in which it was proposed by the United States to settle the boundary was complicated; that he did not mean to apply it to the adoption of a rule in the settlement of disputed questions of location, but to the manner in which it is proposed by the United States that the new commission of survey shall be selected and constituted."

On the 8th of December, 1834, Sir Charles R. Vaughan transmitted a note to the Department of State, in which, after a passing expression of the regret of His Majesty's Government that the American Government still declined to come to a separate understanding on the several points of difference with respect to which the elements of decision were fully before both Governments, but without abandoning the argument contained in his note of 10th February last, he addressed himself exclusively to the American proposition for the appointment of a new commission to be empowered to seek westward of the meridian of the St. Croix highlands answering to the description of those mentioned in the treaty of 1783. He stated with regard to the rule of surveying on which the proposition was founded that however just and reasonable it might be, His Majesty's Government did not consider it so generally established and recognized as Mr. McLane assumed it to be; that, indeed, no similar case was recollected in which the principle asserted had been put in practice; yet, on the contrary, one was remembered not only analogous to that under discussion, but arising out of the same article of the same treaty, in which the supposed rule was invested by the agents of the American Government itself; that the treaty of 1783 declared that the line of boundary was to proceed from the Lake of the Woods "in a due west course to the Mississippi," but it being ascertained that such a line could never reach that river, since its sources lie south of the latitude of the Lake of the Woods, the commissioners, instead of adhering to the natural object—the source of the Mississippi—and drawing a new connecting line to it from the Lake of the Woods, adhered to the arbitrary line to be drawn due west from the lake and abandoned the Mississippi, the specific landmark mentioned in the treaty.

Sir Charles further stated that if the President was persuaded that he could carry out the principle of surveying he had proposed without the consent of Maine, and if no hope remained, as was alleged by Mr. McLane, of overcoming the constitutional difficulty in any other way until at least this proposition should have been tried and have failed, His Majesty's Government, foregoing their own doubts on the subject, were ready to acquiesce in the proceeding proposed by the President if that proceeding could be carried into effect in a manner not otherwise objectionable; that "His Majesty's Government would consider it desirable that the principles on which the new commissioners would have to conduct their survey should be settled beforehand by a special convention between the two Governments;" that there was, indeed, one preliminary question upon which it was obviously necessary the two Governments should agree before the commission could begin their survey with any chance of success, viz, What is the precise meaning to be attached to the words employed in the treaty to define the highlands which the commissioners are to seek for? that those highlands are to be distinguished from other highlands by the rivers flowing from them, and those distinguishing rivers to be known from others by the situation of their mouths; that with respect to the rivers flowing south into the Atlantic Ocean a difference of opinion existed between the two Governments; that whilst the American Government contended that rivers falling into the Bay of Fundy were, the British Government contended that they were not, for the purposes of the treaty, rivers falling into the Atlantic Ocean, and that the views and arguments of the British Government on this point had been confirmed by an impartial authority selected by the common consent of the two Governments, who was of opinion that the rivers St. John and Restigouche were not Atlantic rivers within the meaning of the treaty, and that His Majesty's Government therefore trusted that the American Cabinet would concur with that of His Majesty in deciding "that the Atlantic rivers which are to guide the commissioners in searching for the highlands described in the treaty are those which fall into the sea to the westward of the mouth of the river St. Croix;" that a clear agreement on this point must be an indispensable preliminary to the establishment of any new commission of survey; that till this point be decided no survey of commissioners could lead to a useful result, but that its decision turns upon the interpretation of the words of a treaty, and not upon the operations of surveyors; and His Majesty's Government, having once submitted it, in common with other points, to the judgment of an impartial arbiter, by whose award they had declared themselves ready to abide, could not consent to refer it to any other arbitration.

In a note from the Department of State dated 28th April, 1835, Sir Charles R. Vaughan was assured that his prompt suggestion, as His Britannic Majesty's minister, that a negotiation should be opened for the establishment of a conventional boundary between the two countries was duly appreciated by the President, who, had he possessed like powers with His Majesty's Government over the subject, would have met the suggestion in a favorable spirit.

The Secretary observed that the submission of the whole subject or any part of it to a new arbitrator promised too little to attract the favorable consideration of either party; that the desired adjustment of the controversy was consequently to be sought for in the application of some new principle to the controverted question, and that the President thought that by a faithful prosecution of the plan submitted by his direction a settlement of the boundary in dispute according to the terms of the treaty of 1783 was attainable.

With regard to the rule of practical surveying offered as the basis of the American proposition, he said if it should become material to do so—which was not to be anticipated—he would find no difficulty either in fortifying the ground occupied by this Government in this regard or in satisfying Sir Charles that the instance brought into notice by His Britannic Majesty's Government of a supposed departure from the rule was not at variance with the assertion of Mr. Livingston repeated by Mr. McLane. The Secretary therefore limited himself to the remark that the line of demarcation referred to by Sir Charles was not established as the true boundary prescribed by the treaty of 1783, but was a conventional substitute for it, the result of a new negotiation controlled by other considerations than those to be drawn from that instrument only.

The Secretary expressed the President's unfeigned regret upon learning the decision of His Majesty's Government not to agree to the proposition made on the part of the United States without a precedent compliance by them with inadmissible conditions. He said that the views of this Government in regard to this proposal of His Majesty's Government had been already communicated to Sir Charles R. Vaughan, and the President perceived with pain that the reasons upon which these opinions were founded had not been found to possess sufficient force and justice to induce the entire withdrawal of the objectionable conditions, but that, on the contrary, while His Majesty's Government had been pleased to waive for the present six of the seven opinions referred to, the remaining one, amongst the most important of them all, was still insisted upon, viz, that the St. John and Restigouche should be treated by the supposed commission as not being Atlantic rivers according to the meaning of those terms in the treaty. With reference to that part of Sir Charles's communication which seeks to strengthen the ground heretofore taken on this point by the British Government by calling to its aid the supposed confirmation of the arbiter, the Secretary felt himself warranted in questioning whether the arbiter had ever given his opinion that the rivers St. John and Restigouche can not be considered according to the meaning of the treaty as rivers falling into the Atlantic, and he insisted that it was not the intention of the arbiter to express the opinion imputed to him.

The Secretary also informed Sir Charles that the President could not consent to clog the submission with the condition proposed by Her Majesty's Government; that a just regard to the rights of the parties and a proper consideration of his own duties required that the new submission, if made, should be made without restriction or qualification upon the discretion of the commissioners other than such as resulted from established facts and the just interpretation of the definitive treaty, and such as had been heretofore and were now again tendered to His Britannic Majesty's Government; that he despaired of obtaining a better constituted tribunal than the one proposed; that he saw nothing unfit or improper in submitting the question as to the character in which the St. John and Restigouche were to be regarded to the decision of an impartial commission; that the parties had heretofore thought it proper so to submit it, and that it by no means followed that because commissioners chosen by the parties themselves, without an umpire, had failed to come to an agreement respecting it, that the same result would attend the efforts of a commission differently selected. The Secretary closed his note by stating that the President had no new proposal to offer, but would be happy to receive any such proposition as His Britannic Majesty's Government might think it expedient to make, and by intimating that he was authorized to confer with Sir Charles whenever it might suit his convenience and comport with the instructions of his Government with respect to the treaty boundary or a conventional substitute for it.

On the 4th of May, 1835, Sir Charles R. Vaughan expressed his regret that the condition which His Majesty's Government had brought forward as an essential preliminary to the adoption of the President's proposal had been declared to be inadmissible by the American Government.

Sir Charles confidently appealed to the tenor of the language of the award of the arbiter to justify the inference drawn from it by His Majesty's Government in regard to that point in the dispute which respects the rivers which are to be considered as falling directly into the Atlantic. The acquiescence of the United States in what was understood to be the opinion of the arbiter was invited, he said, because the new commission could not enter upon their survey in search of the highlands of the treaty without a previous agreement between the two Governments what rivers ought to be considered as falling into the Atlantic, and that if the character in which the Restigouche and St. John were to be regarded was a question to be submitted to the commissioners the President's proposition would assume the character of a new arbitration, which had been already objected to by the Secretary. Sir Charles also stated that while His Majesty's Government had wished to maintain the decisions of the arbiter on subordinate points, their mention had not been confined to those decided in favor of British claims; that the decisions were nearly balanced in favor of either party, and the general result of the arbitration was so manifestly in favor of the United States that to them were assigned three-fifths of the territory in dispute and Rouses Point, to which they had voluntarily resigned all claim.

Sir Charles acknowledged with much satisfaction the Secretary's assurance that if the President possessed the same power as His Majesty's Government over the question of boundary he would have met the suggestion of a conventional line, contained in Sir Charles's note of 31st May, 1833, in a favorable spirit. He lamented that the two Governments could not coincide in the opinion that the removal of the only difficulty in the relations between them was attainable by the last proposal of the President, as it was the only one in his power to offer in alleviation of the task of tracing the treaty line, to which the Senate had advised that any further negotiation should be restricted. He said that he was ready to confer with the Secretary whenever it might be convenient to receive him, and stated that as to any proposition which it might be the wish of the United States to receive from His Majesty's Government respecting a conventional substitute for the treaty of 1783, it would in the first instance, to avoid constitutional difficulties in the way of the Executive, be necessary to obtain the consent of Maine, an object which must be undertaken exclusively by the General Government of the United States.

Mr. Bankhead, the British charge d'affaires, in a note to the Department dated 28th December, 1835, stated that during the three years which had elapsed since the refusal of the Senate to agree to the award of the King of the Netherlands, although the British Government had more than once declared its readiness to abide by its offer to accept the award, the Government of the United States had as often replied that on its part that award could not be agreed to; that the British Government now considered itself by this refusal of the United States fully and entirely released from the conditional offer which it had made, and that he was instructed distinctly to announce to the President that the British Government withdrew its consent to accept the territorial compromise recommended by the King of the Netherlands.

With regard to the American proposition for the appointment of a new commission of exploration and survey, Mr. Bankhead could not see, since the President found himself unable to admit the distinction between the Bay of Fundy and the Atlantic Ocean, how any useful result could arise out of the proposed survey. He thought, on the contrary, that if it did not furnish fresh subjects of difference between the two Governments it could at best only bring the subject back to the same point at which it now stood.

To the suggestion of the President that the commission of survey should be empowered to decide the river question Mr. Bankhead said it was not in the power of His Majesty's Government to assent; that this question could not properly be referred to such a commission, because it turned upon the interpretation to be put upon the words of the treaty of 1783, and upon the application of that interpretation to geographical facts already well known and ascertained, and that therefore a commission of survey had no peculiar competency to decide such a question; that to refer it to any authority would be to submit it to a fresh arbitration, and that if His Majesty's Government were prepared to agree to a fresh arbitration, which was not the case, such arbitration ought necessarily, instead of being confined to one particular point alone, to include all the points in dispute between the two Governments; that His Majesty's Government could therefore only agree to such a commission provided there were a previous understanding between the two Governments; that although neither should be required to give up its own interpretation of the river question, yet "the commissioners should be instructed to search for highlands upon the character of which no doubt could exist on either side."

If this modification of the President's proposal should not prove acceptable, Mr. Bankhead observed, the only remaining way of adjusting the difference would be to abandon altogether the attempt to draw a line in conformity with the words of the treaty and to fix upon a convenient line, to be drawn according to equitable principles and with a view to the respective interests and the convenience of the two parties. He stated that His Majesty's Government were perfectly ready to treat for such a line, and conceived that the natural features of the disputed territory would afford peculiar facilities for drawing it; that His Majesty's Government would therefore propose an equal division of the territory in dispute between Great Britain and the United States, and that the general outline of such a division would be that the boundary between the two States should be drawn due north from the head of St. Croix River till it intersected the St. John; thence up the bed of the St. John to the southernmost source of that river, and from that point it should be drawn to the head of the Connecticut River in such manner as to make the northern and southern allotments of the divided territory as nearly as possible equal to each other in extent.

In reply to the preceding note the Secretary, under date of February 29, 1836, expressed the President's regret to find that His Britannic Majesty's Government adhered to its objection to the appointment of a commission to be chosen in either of the modes heretofore proposed by the United States and his conviction that the proposition on which it was founded, "that the river question was a treaty construction only," although repeated on various occasions by Great Britain, was demonstrably untenable, and, indeed, only plausible when material and most important words of description in the treaty are omitted in quoting from that instrument. He said that while His Majesty's Government maintain their position agreement between the United States and Great Britain on this point was impossible; that the President was therefore constrained to look to the new and conventional line offered in Mr. Bankhead's note, but that in such a line the wishes and interests of Maine were to be consulted, and that the President could not in justice to himself or that State make any proposition utterly irreconcilable with her previously well-known opinions on the subject; that the principle of compromise and equitable division was adopted by the King of the Netherlands in the line recommended by him, a line rejected by the United States because unjust to Maine; and yet that line gave to Great Britain little more than 2,000,000, while the proposition now made by His Majesty's Government secured to Great Britain of the disputed land more than 4,000,000 acres; that the division offered by Mr. Bankhead's note was not in harmony with the equitable rule from which it is said to spring, and if it were in conformity with it could not be accepted without disrespect to the previous decisions and just expectations of Maine. The President was far from attributing this proposition, the Secretary said, to the desire of His Majesty's Government to acquire territory. He doubted not that the offer, without regard to the extent of territory falling to the north or south of the St. John, was made by His Majesty's Government from a belief that the substitution of a river for a highland boundary would be useful in preventing territorial disputes in future; but although the President coincided in this view of the subject he was compelled to decline the boundary proposed as inconsistent with the known wishes, rights, and decisions of the State.

The Secretary concluded by stating that the President, with a view to terminate at once all controversy, and without regard to the extent of territory lost by one party or acquired by the other, to establish a definite and indisputable line, would, if His Majesty's Government assented to it, apply to the State of Maine for its consent to make the river St. John from its source to its mouth the boundary between Maine and His Britannic Majesty's dominions in that part of North America.

Mr. Bankhead acknowledged on the 4th March, 1836, the receipt of this note from the Department, and said that the rejection of the conventional line proposed in his previous note would cause His Majesty's Government much regret. He referred the Secretary to that part of his note of the 28th December last wherein the proposition of the President for a commission of exploration and survey was fully discussed, as it appeared to Mr. Bankhead that the Secretary had not given the modification on the part of His Majesty's Government of the American proposition the weight to which it was entitled. He said that it was offered with the view of meeting as far as practicable the wishes of the President and of endeavoring by such a preliminary measure to bring about a settlement of the boundary upon a basis satisfactory to both parties; that with this view he again submitted to the Secretary the modified proposal of His Majesty's Government, remarking that the commissioners who might be appointed were not to decide upon points of difference, but merely to present to the respective Governments the result of their labors, which, it was hoped and believed, would pave the way for an ultimate settlement of the question.

Mr. Bankhead considered it proper to state frankly and clearly that the proposition offered in the last note from the Department to make the river St. John from its source to its mouth the boundary between the United States and His Majesty's Province of New Brunswick was one to which the British Government, he was convinced, would never agree.

On the 5th March the Secretary expressed regret that his proposition to make the river St. John the boundary between Maine and New Brunswick would, in the opinion of Mr. Bankhead, be declined by his Government; that the Government of the United States could not, however, relinquish the hope that the proposal, when brought before His Majesty's cabinet and considered with the attention and deliberation due to its merits, would be viewed in a more favorable light than that in which it appeared to have presented itself to Mr. Bankhead. If, however, the Secretary added, this expectation should be disappointed, it would be necessary before the President consented to the modification of his previous proposition for the appointment of a commission of exploration and survey to be informed more fully of the views of the British Government in offering the modification, so that he might be enabled to judge how the report of the commission (which as now proposed to be constituted was not to decide upon points of difference) would be likely to lead to an ultimate settlement of the question of boundary, and also which of the modes proposed for the selection of commissioners was the one intended to be accepted, with the modification suggested by His Britannic Majesty's Government.

In January last Mr. Fox, the British minister at Washington, made a communication to the Department of State, in which, with reference to the objection preferred by the American Government that it had no power without the consent of Maine to agree to the arrangement proposed by Great Britain, since it would be considered by that State as equivalent to a cession of what she regarded as a part of her territory, he observed that the objection of the State could not be admitted as valid, for the principle on which it rested was as good for Great Britain as it was for Maine; that if the State was entitled to contend that until the treaty line was determined the boundary claimed by Maine must be regarded as the right one, Great Britain was still more entitled to insist on a similar pretension and to assert that until the line of the treaty shall be established satisfactorily the whole of the disputed territory ought to be considered as belonging to the British Crown, since Great Britain was the original possessor, and all the territory which had not been proved to have been by treaty ceded by her must be deemed to belong to her still. But Mr. Fox said the existence of these conflicting pretensions pointed out the expediency of a compromise; and why, he asked, as a conventional line different from that described in the treaty was agreed to with respect to the boundary westward from the Lake of the Woods, should such a line not be agreed to likewise for the boundary eastward from the Connecticut? Her Majesty's Government could not, he added, refrain from again pressing this proposition upon the serious consideration of the United States as the arrangement best calculated to effect a prompt and satisfactory settlement between the two powers.

With reference to the American proposition to make the river St. John from its mouth to its source the boundary, Mr. Fox remarked that it was 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 it would give to Maine all the disputed territory lying south of the St. John, and in exchange for the remaining part of the territory lying to the north of the St. John would add to the State of Maine a large district of New Brunswick—a district smaller in extent, but much more considerable in value, than the portion of the disputed territory which lies to the north of the St. John.

With regard to the proposition for the appointment of a commission of exploration and survey, Mr. Fox stated that Her Majesty's Government, with little expectation that it could lead to a useful result, but unwilling to reject the only plan left which seemed to afford a chance of making a further advance in this matter, would not withhold their consent to such a commission if the principle upon which it was to be formed and the manner in which it was to proceed could be satisfactorily settled; that of the two modes proposed in which such a commission might be constituted Her Majesty's Government thought the first, viz, 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, would be the best, but suggested that it might 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; that the object of this commission should be to explore the disputed territory in order to find within its limits dividing highlands which might answer the description of the treaty, the search to be made in a north and northwest line from the monument at the head of the St. Croix; and that Her Majesty's Government had given their opinion that the commissioners should be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty.

In answer to the inquiry how the report of the commission would, according to the views of Her Majesty's Government, be likely when rendered to lead to an ultimate settlement of the boundary question, Mr. Fox observed that since the proposal for the appointment of a commission originated with the Government of the United States, it was rather for that Government than the Government of Great Britain to answer this question. Her Majesty's Government had already stated they had little expectation that such a commission could lead to any useful result, etc., but that Her Majesty's Government, in the first place, conceived 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 from them to the head of the St. Croix should be deemed to be a portion of the boundary between the two countries. Mr. Fox further referred the Secretary to the previous notes of Mr. McLane on the subject, in which it was contemplated as one of the possible results of the proposed commission that such additional information might be obtained of the features of the country as might remove all doubt as to the impracticability of laying down a boundary in accordance with the letter of the treaty. Mr. Fox said that if the investigations of the commission should show that there was no reasonable prospect of finding the line described in the treaty of 1783 the constitutional difficulties which now prevented the United States from agreeing to a conventional line might possibly be removed, and the way be thus prepared for a satisfactory settlement of the difference by equitable division of the territory; but, he added in conclusion, if the two Governments should agree to the appointment of such a commission, it would be necessary that their agreement should be by a convention, and it would be obviously indispensable that the State of Maine should be an assenting party to the arrangement.

In acknowledging the receipt of Mr. Fox's communication at the Department he was informed (7th February) that the President experienced deep disappointment in finding that the answer just presented on the part of the British Government to the proposition made by this Government with the view of effecting the settlement of the boundary question was so indefinite in its terms as to render it impracticable to ascertain without further discussion what were the real wishes and intentions of Her Majesty's Government respecting the appointment of a commission of exploration and survey, but that a copy of it would be transmitted to the executive of Maine for the purpose of ascertaining the sense of the State authorities upon the expediency of meeting the views of Her Majesty's Government so far as they were therein developed.

Occasion was taken at the same time to explain to Mr. Fox, in answer to the suggestion in his note of the 10th of January last, that the parallel of latitude adopted as a conventional substitute for the line designated in the treaty for the boundary westward from the Lake of the Woods passed over territory within the exclusive jurisdiction of the General Government, without trenching upon the rights or claims of any member of the Union, and the legitimate power of the Government, therefore, to agree to such line was held to be perfect, but that in acceding to a conventional line for the boundary eastward from the river Connecticut it would transcend its constitutional powers, since such a measure could only be carried into effect by violating the jurisdiction of a sovereign State and assuming to alienate a portion of the territory claimed by such State.

In reply to the observation of Mr. Fox that it was difficult to understand upon what ground an expectation could have been entertained that the proposition to make the St. John the boundary would be received by Her Majesty's Government, he was informed that the suggestion had been offered, as the proposition on the part of Great Britain that led to it was supposed to have been, with regard to the extent of territory lost or acquired by the respective parties, and in the hope that the great importance of terminating this controversy by establishing a definite and indisputable boundary would be seen and acknowledged by the British Government, and have a correspondent weight in influencing its decision; that the suggestion in Mr. Bankhead's note of 28th December, 1835, of a part of the river St. John as a portion of the general outline of a conventional boundary, apparently recognized the superior advantages of a river over a highland boundary, and that 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 alluded to, although based upon 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 Great Britain; that it was therefore fair to presume that the river line, in the opinion of His Majesty's Government, presented advantages sufficient to counterbalance any loss of territory by either party that might accrue from its adoption; and it was also supposed that another recommendation of this line would be seen by Great Britain 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 and jurisdiction of all the disputed territory north of that river.

To correct a misapprehension into which Mr. Fox appeared to have fallen, the distinctive difference between the American proposition for a commission and that proposition as subsequently modified by Great Britain was pointed out, and he was informed that although the proposal originated with this Government, the modification was so fundamentally important that it entirely changed the nature of the proposition, 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 preferred by the Secretary of State for information relative to the manner in which the report of the commission as proposed to be constituted and instructed by the British Government might tend to a practical result was unfounded. Mr. Fox was also given to understand that 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 be carried into effect without unnecessary delay; but if the substitute presented by Her Majesty's Government should be insisted on and its principles be adopted, it would then be necessary to resort to the State of Maine for her assent in all proceedings relative to the matter, since any arrangement under it can only be for a conventional line to which she must be a party.

In conclusion, it was intimated to Mr. Fox that if a negotiation be entertained by this Government at all upon the unsatisfactory basis afforded by the British counter proposition or substitute, the President will not invite it unless the authorities of the State of Maine shall think it more likely to lead to an adjustment of the question of boundary than the General Government deemed it to be, although predisposed to see it in the most favorable light.

Your excellency will perceive that in the course of these proceedings, but without abandoning the attempt to adjust the treaty line, steps necessary, from the want of power in the Federal Government, of an informal character, have been taken to test the dispositions of the respective Governments upon the subject of substituting a conventional for the treaty line. It will also be seen from the correspondence that the British Government, despairing of a satisfactory adjustment of the line of the treaty, avows its willingness to enter upon a direct negotiation for the settlement of a conventional line if the assent of the State of Maine to that course can be obtained.

Whilst the obligations of the Federal Government to do all in its power to effect a settlement of this boundary are fully recognized on its part, it has in the event of its being unable to do so specifically by mutual consent no other means to accomplish the object amicably than by another arbitration, or a commission, with an umpire, in the nature of an arbitration. In the contingency of all other measures failing the President will feel it to be his duty to submit another proposition to the Government of Great Britain to refer the decision of the question to a third party. He would not, however, be satisfied in taking this final step without having first ascertained the opinion and wishes of the State of Maine upon the subject of a negotiation for the establishment of a conventional line, and he conceives the present the proper time to seek it.

I am therefore directed by the President to invite your excellency to adopt such measures as you may deem necessary to ascertain the sense of the State of Maine with respect to the expediency of attempting to establish a conventional line of boundary between that State and the British possessions by direct negotiation between the Governments of the United States and Great Britain, and whether the State of Maine will agree, and upon what conditions, if she elects to prescribe any, to abide by such settlement if the same be made. Should the State of Maine be of opinion that additional surveys and explorations might be useful either in leading to a satisfactory adjustment of the controversy according to the terms of the treaty or in enabling the parties to decide more understandingly upon the expediency of opening a negotiation for the establishment of a line that would suit their mutual convenience and be reconcilable to their conflicting interests, and desire the creation for that purpose of a commission upon the principles and with the limited powers described in the letter of Mr. Fox, the President will without hesitation open a negotiation with Great Britain for the accomplishment of that object.

I have the honor to be, with high consideration, your excellency's obedient servant,

JOHN FORSYTH.



WASHINGTON, April 5, 1838.

To the House of Representatives of the United States:

I herewith transmit to the House of Representatives a report from the Secretary of State, with accompanying papers, in answer to their resolution of the 21st ultimo.

M. VAN BUREN.



DEPARTMENT OF STATE,

Washington, April 4, 1838.

The PRESIDENT OF THE UNITED STATES:

The Secretary of State, to whom has been referred the resolution of the House of Representatives of the 21st ultimo, requesting the President, "if not incompatible with the public interests, to communicate to that House any information possessed by him respecting the capture and destruction of the steamboat Caroline at Schlosser during the night of the 29th December last, and the murder of citizens of the United States on board, and all the particulars thereof not heretofore communicated, and especially to inform the House whether said capture was authorized, commanded, or sanctioned or has been avowed by the British authorities or officers, or any of them, and also what steps have been taken by him to obtain satisfaction from the Government of Great Britain on account of said outrage, and to communicate to the House all correspondence or communications relative thereto which have passed between the Government of the United States and Great Britain, or any of the public authorities of either," has the honor to lay before the President the accompanying documents, which contain all the information in the possession of this Department relative to the subject of the resolution; and to state, moreover, that instructions have been transmitted to the minister of the United States in London to make a full representation to Her Britannic Majesty's Government of the facts connected with this lamentable occurrence, to remonstrate against the unwarrantable course pursued on the occasion by the British troops from Canada, and to express the expectation of this Government that such redress as the nature of the case obviously requires will be promptly given.

Respectfully submitted.

JOHN FORSYTH.



Mr. Forsyth to Mr. Fox.

DEPARTMENT OF STATE,

Washington, January 5, 1838.

HENRY S. FOX, Esq., etc.

SIR: By the direction of the President of the United States, I have the honor to communicate to you a copy of the evidence furnished to this Department of an extraordinary outrage committed from Her Britannic Majesty's Province of Upper Canada on the persons and property of citizens of the United States within the jurisdiction of the State of New York. The destruction of the property and the assassination of citizens of the United States on the soil of New York at the moment when, as is well known to you, the President was anxiously endeavoring to allay the excitement and earnestly seeking to prevent any unfortunate occurrence on the frontier of Canada have produced upon his mind the most painful emotions of surprise and regret. It will necessarily form the subject of a demand for redress upon Her Majesty's Government. This communication is made to you under the expectation that through your instrumentality an early explanation may be obtained from the authorities of Upper Canada of all the circumstances of the transaction, and that by your advice to those authorities such decisive precautions may be used as will render the perpetration of similar acts hereafter impossible. Not doubting the disposition of the government of Upper Canada to do its duty in punishing the aggressors and preventing future outrage, the President nevertheless has deemed it necessary to order a sufficient force on the frontier to repel any attempt of a like character and to make known to you that if it should occur he can not be answerable for the effects of the indignation of the neighboring people of the United States.

I avail myself of this occasion, etc.

JOHN FORSYTH.



Mr. Forsyth to Mr. Fox.

DEPARTMENT OF STATE,

Washington, January 9, 1838.

HENRY S. FOX, Esq., etc.

SIR: With reference to my note of the 5th instant, communicating to you evidence of an extraordinary outrage committed from Her Britannic Majesty's Province of Upper Canada on the persons and property of certain citizens of the United States at Schlosser, within the jurisdiction of the State of New York, on the night of the 29th ultimo, I have now the honor to transmit to you the copy of a letter[26] recently received from the attorney of the United States for the northern district of New York, dated the 8th of the current month, with transcripts of sundry depositions[26] which accompanied it, containing additional information in regard to that most disastrous occurrence. A letter from Mr. George W. Pratt of the 10th of January, with inclosures relating to the same subject, is also sent.

I avail myself of this occasion to renew to you the assurance of my distinguished consideration.

JOHN FORSYTH.

[Footnote 26: Omitted.]



ROCHESTER, January 10, 1838.

The PRESIDENT.

SIR: Colonel McNab, having avowed that the steamboat Caroline was destroyed by his orders, justifies himself by the plea, sustained by affidavits, that hostilities were commenced from the American shore.

I inclose you the affidavits[26] of four respectable citizens of Rochester, who were present at the time, who contradict the assertions of Colonel McNab.

I have the honor to be, your obedient servant,

GEO. W. PRATT.



Mr. Fox to Mr. Forsyth.

WASHINGTON, February 6, 1838.

Hon. JOHN FORSYTH, etc.

SIR: With reference to the letters which, by direction of the President, you addressed to me on the 5th and 19th ultimo, respecting the capture and destruction of the steamboat Caroline by a Canadian force on the American side of the Niagara River, within the jurisdiction of the State of New York, I have now the honor to communicate to you the copy of a letter upon that subject which I have received from Sir Francis Head, lieutenant-governor of the Province of Upper Canada, with divers reports and depositions annexed.

The piratical character of the steamboat Caroline and the necessity of self-defense and self-preservation under which Her Majesty's subjects acted in destroying that vessel would seem to be sufficiently established.

At the time when the event happened the ordinary laws of the United States were not enforced within the frontier district of the State of New York. The authority of the law was overborne publicly by piratical violence. Through such violence Her Majesty's subjects in Upper Canada had already severely suffered, and they were threatened with still further injury and outrage. This extraordinary state of things appears naturally and necessarily to have impelled them to consult their own security by pursuing and destroying the vessel of their piratical enemy wheresoever they might find her.

I avail myself of this occasion to renew to you the assurance of my high respect and consideration.

H.S. FOX.



TORONTO, UPPER CANADA, January 8, 1838.

His Excellency HENRY S. FOX,

Her Majesty's Minister, Washington.

SIR: I have the honor to inclose you the copy of a special message sent by His Excellency Governor Marcy to the legislature of the State of New York, in relation to a matter on which your excellency will desire the earliest and most authentic information. The message only reached this place yesterday, and I lose no time in communicating with your excellency on the subject.

The governor of the State of New York complains of the cutting out and burning of the steamboat Caroline by order of Colonel McNab, commanding Her Majesty's forces at Chippewa, in the Province of Upper Canada, and of the destruction of the lives of some American citizens who were on board of the boat at the time she was attacked.

The act complained of was done under the following circumstances:

In Upper Canada, which contains a population of about 450,000 souls, the most perfect tranquillity prevailed up to the 4th day of December last, although in the adjoining Province of Lower Canada many of the French Canadian inhabitants had been in open rebellion against the Government for about a month preceding.

At no time since the treaty of peace with the United States in 1815 had Upper Canada been more undisturbed. The real causes of the insurrection in Lower Canada, namely, the national antipathy of the French inhabitants, did not in any degree apply in the upper Province, whose population, like the British and American inhabitants of Lower Canada, were wholly opposed to the revolt and anxious to render every service in their power in support of the Queen's, authority.

It had been reported to the Government some time before the 4th of December that in a remote portion of the home district a number of persons occasionally met and drilled with arms under leaders known to be disaffected, but it was not believed by the Government that anything more could be intended than to make a show of threatened revolt in order to create a diversion in favor of the rebels in Lower Canada.

The feeling of loyalty throughout this Province was known to be so prevalent and decided that it was not thought unsafe to forbear, for the time at least, to take any notice of the proceedings of this party.

On the night of the 4th December the inhabitants of the city of Toronto were alarmed by the intelligence that about 500 persons armed with rifles were approaching the city; that they had murdered a gentleman of great respectability in the highway, and had made several persons prisoners. The inhabitants rushed immediately to arms; there were no soldiers in the Province and no militia had been called out. The home district, from which this party of armed men came, contains 60,000 inhabitants; the city of Toronto 10,000. In a few hours a respectable force, although undisciplined, was collected and armed in self-defense, and awaited the threatened attack. It seems now to admit of no doubt that if they had at once advanced against the insurgents they would have met with no formidable resistance, but it was thought more prudent to wait until a sufficient force should be collected to put the success of an attack beyond question. In the meantime people poured in from all quarters to oppose the insurgents, who obtained no increase of numbers, but, on the contrary, were deserted by many of their body in consequence of the acts of devastation and plunder into which their leader had forced them.

On the 7th of December an overwhelming force of militia went against them and dispersed them without losing a man, taking many prisoners, who were instantly by my order released and suffered to depart to their homes. The rest, with their leaders, fled; some have since surrendered themselves to justice; many have been taken, and some have escaped from the Province.

It was reported about this time that in the district of London a similar disposition to rise had been observed, and in consequence a militia force of about 400 men was sent into that district, where it was speedily joined by three times as many of the inhabitants of the district, who assembled voluntarily and came to their aid with the greatest alacrity.

It was discovered that about 300 persons under Dr. Duncombe, an American by birth, were assembled with arms, but before the militia could reach them they dispersed themselves and fled. Of these by far the greater came in immediately and submitted themselves to the Government, declaring that they had been misled and deceived, and praying for forgiveness.

In about a week perfect tranquillity was restored, and from that moment not a man has been seen in arms against the Government in any part of the Province, with the exception of the hostile aggression upon Navy Island, which I shall presently notice; nor has there been the slightest resistance offered to the execution of legal process in a single instance.

After the dispersion of the armed insurgents near Toronto Mr. McKenzie, their leader, escaped in disguise to the Niagara River and crossed over to Buffalo. Reports had been spread there and elsewhere along the American frontier that Toronto had been burnt and that the rebels were completely successful, but the falsehood of these absurd rumors was well known before McKenzie arrived on the American side. It was known also that the ridiculous attempt of 400 men to revolutionize a country containing nearly half a million inhabitants had been put down by the people instantly and decidedly without the loss of a man.

Nevertheless, a number of American citizens in Buffalo and other towns on the frontier of the State of New York enlisted as soldiers, with the avowed object of invading Canada and establishing a provisional government. Public meetings were held to forward this design of invading a country with which the United States were at peace. Volunteers were called for, and arms, ammunition, and provisions were supplied by contributions openly made. All this was in direct and flagrant violation of the express laws of the United States, as well as of the law of nations.

The civil authority of Buffalo offered some slight shew of resistance to the movement, being urged to interpose by many of the most respectable citizens. But no real impediment was offered, and on the 13th of December some hundreds of the citizens of the State of New York, as an armed body under the command of a Mr. Van Rensselaer, an American citizen, openly invaded and took possession of Navy Island, a part of Upper Canada, situate in the Niagara River.

Not believing that such an outrage would really be committed, no force whatever was assembled at the time to counteract this hostile movement.

In a very short time this lawless band obtained from some of the arsenals of the State of New York (clandestinely, as it is said) several pieces of artillery and other arms, which in broad daylight were openly transported to Navy Island without resistance from the American authorities. The people of Buffalo and the adjacent country continued to supply them with stores of various kinds, and additional men enlisted in their ranks.

In a few days their force was variously stated from 500 to 1,500, of whom a small proportion were rebels who had fled from Upper Canada. They began to intrench themselves, and threatened that they would in a short time make a landing on the Canadian side of the Niagara River.

To prevent this and to keep them in check a body of militia was hastily collected and stationed on the frontier, under the command of Colonel Cameron, assistant adjutant-general of militia, who was succeeded in this command by Colonel McNab, the speaker of the house of assembly, an officer whose humanity and discretion, as well as his activity, have been proved by his conduct in putting down the insurrection in the London district and have been acknowledged in warm terms of gratitude by the misguided persons who had surrendered themselves into his hands. He received orders to act on the defensive only, and to be careful not to do any act which the American Government could justly complain of as a breach of neutrality.

An official statement of the unfriendly proceedings at Buffalo was without delay (on the 13th December) made by me to his excellency the governor of the State of New York, to which no answer has been received. And after this open invasion of our territory, and when it became evident that nothing was effected at Buffalo for preventing the violation of neutrality, a special messenger was sent to your excellency at Washington to urge your interposition in the matter. Sufficient time has not yet elapsed to admit of his return. Soon after his departure this band of outlaws on Navy Island, acting in defiance of the laws and Government of both countries, opened a fire from several pieces of ordnance upon the Canadian shore, which in this part is thickly settled, the distance from the island being about 600 yards and within sight of the populous village of Chippewa. They put several balls (6-pound shot) through a house in which a party of militiamen were quartered and which is the dwelling house of Captain Usher, a respectable inhabitant. They killed a horse on which a man at the time was riding, but happily did no further mischief, though they fired also repeatedly with cannon and musketry upon our boats.

They continued daily to render their position more formidable, receiving constant supplies of men and warlike stores from the State of New York, which were chiefly embarked at a landing place on the American main shore, called Fort Schlosser, nearly opposite to Navy Island. This place was once, I believe, a military position, before the conquest of Canada from the French, but there is now neither fort nor village there, but merely a single house occupied as a tavern, and a wharf in front of it, to which boats and vessels are moored. The tavern had been during these lawless proceedings a rendezvous for the band (who can not be called by any name more appropriate than pirates), and was in fact openly and notoriously resorted to as their headquarters on the mainland, and is so to this time. On the 28th December positive information was given to Colonel McNab by persons from Buffalo that a small steamboat called the Caroline, of about 50 tons burthen, had been hired by the pirates, who called themselves "patriots," and was to be employed in carrying down cannon and other stores and in transporting men and anything else that might be required between Fort Schlosser and Navy Island.

He resolved if she came down and engaged in this service to take or destroy her. She did come down agreeably to the information he received. She transported a piece of artillery and other stores to the island, and made repeated passages during the day between the island and the main shore.

In the night he sent a party of militia in boats, with orders to take or destroy her. They proceeded to execute the order. They found the Caroline moored to the wharf opposite to the inn at Fort Schlosser. In the inn there was a guard of armed men to protect her—part of the pirate force, or acting in their support. On her deck there was an armed party and a sentinel, who demanded the countersign.

Thus identified as she was with the force which in defiance of the law of nations and every principle of natural justice had invaded Upper Canada and made war upon its unoffending inhabitants, she was boarded, and after a resistance in which some desperate wounds were inflicted upon the assailants she was carried. If any peaceable citizens of the United States perished in the conflict, it was and is unknown to the captors, and it was and is equally unknown to them whether any such were there. Before this vessel was thus taken not a gun had been fired by the force under the orders of Colonel McNab, even upon this gang of pirates, much less upon any peaceable citizen of the United States. It must therefore have been a consciousness of the guilty service she was engaged in that led those who were employing her to think an armed guard necessary for her defense. Peaceable citizens of the United States were not likely to be found in a vessel so employed at such a place and in such a juncture, and if they were there their presence, especially unknown as it was to the captors, could not prevent, in law or reason, this necessary act of self-defense.

Fifteen days had elapsed since the invasion of Upper Canada by a force enlisted, armed, and equipped openly in the State of New York. The country where this outrage upon the law of nations was committed is populous. Buffalo also contains 15,000 inhabitants. The public authorities, it is true, gave no countenance to those flagrant acts, but it did not prevent them or in the slightest degree obstruct them further than by issuing proclamations, which were disregarded.

Perhaps they could not, but in either case the insult and injury to the inhabitants of Canada were the same and their right to defend themselves equally unquestionable.

No wanton injury was committed by the party who gallantly effected this service. They loosed the vessel from the wharf, and finding they could not tow her against the rapid current of the Niagara, they abandoned the effort to secure her, set her on fire, and let her drift down the stream.

The prisoners taken were a man who, it will be seen by the documents accompanying this dispatch, avowed himself to be a subject of Her Majesty, inhabiting Upper Canada, who had lately been traitorously in arms in that Province, and, having fled to the United States, was then on board for the purpose of going to the camp at Navy Island; and a boy, who, being born in Lower Canada, was probably residing in the United States, and who, being afraid to land from the boat in consequence of the firing kept up by the guard on the shore, was placed in one of the boats under Captain Drew and taken over to our side, from whence he was sent home the next day by the Falls ferry with money given him to bear his expenses.

I send with this letter, first, a copy of my first communication to His Excellency Governor Marcy,[27] to which no reply has reached me; second, the official reports, correspondence, and militia general order respecting the destruction of the Caroline, with other documents;[27] third, the correspondence between Commissary-General Arcularius, of the State of New York, respecting the artillery belonging to the government of the State of New York, which has been and is still used in making war upon this Province;[27] fourth, other correspondence arising out of the present state of things on the Niagara frontier;[27] fifth, the special message of Governor Marcy.[27]

It will be seen from these documents that a high officer of the government of the State of New York has been sent by his excellency the governor for the express purpose of regaining possession of the artillery of that State which is now employed in hostile aggressions upon this portion of Her Majesty's dominions, and that, being aided and favored, as he acknowledges, by the most friendly cooperation which the commanding officer of Her Majesty's forces could give him, he has been successfully defied by this army of American citizens, and has abandoned the object of his mission in despair.

It can hardly fail also to be observed by your excellency that in the course of this negotiation between Mr. Van Rensselaer and the commissary-general of the State of New York this individual, Mr. Van Rensselaer, has not hesitated to place himself within the immediate jurisdiction of the government whose laws he had violated and in direct personal communication with the officer of that government, and has, nevertheless, been allowed to return unmolested to continue in command of American citizens engaged in open hostilities against Great Britain.

The exact position, then, of affairs on our frontier may be thus described:

An army of American citizens, joined to a very few traitors from Upper Canada, and under the command of a subject of the United States, has been raised and equipped in the State of New York against the laws of the United States and the treaties now subsisting, and are using artillery plundered from the arsenals of the State of New York in carrying on this piratical warfare against a friendly country.

The officers and Government of the United States and of the State of New York have attempted to arrest these proceedings and to control their citizens, but they have failed. Although this piratical assemblage are thus defying the civil authorities of both countries, Upper Canada alone is the object of their hostilities. The Government of the United States has failed to enforce its authority by any means, civil or military, and the single question (if it be a question) is whether Upper Canada was bound to refrain from necessary acts of self-defense against a people whom their own Government either could not or would not control.

In perusing the message of His Excellency Governor Marcy to the legislature of the State of New York your excellency will probably feel some degree of surprise that after three weeks' continued hostility carried on by the citizens of New York against the people of Upper Canada his excellency seems to have considered himself not called upon to make this aggression the subject of remark for any other purpose than to complain of a solitary act of self-defense on the part of Her Majesty's Province of Upper Canada, to which such unprovoked hostilities have unavoidably led.