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.