In the meantime the undersigned avails himself of the present occasion to offer a few remarks upon certain parts of Mr. Fox's note of the 10th ultimo. After adverting to the suggestion heretofore made by the British Government that a conventional line equally dividing the territory in dispute between the two parties should be substituted for the line described by the treaty, and regretting the constitutional incompetency of the Federal Government to agree to such an arrangement without the consent of the State of Maine, Mr. Fox refers to the conventional line adopted, although different from that designated by the treaty, with respect to the boundary westward from the Lake of the Woods, and asks, "Why should such a line not be agreed to likewise for the boundary eastward from the river Connecticut?" The reply to this question is obvious. The parallel of latitude adopted on the occasion referred to as a conventional substitute for the treaty line passed over territory within the exclusive jurisdiction of the General Government without trenching upon the rights or claims of any individual member of the Union, and the legitimate power of the Government, therefore, to agree to such line was perfect and unquestioned. Now in consenting to a conventional line for the boundary eastward from the river Connecticut the Government of the United States would transcend its constitutional powers, since such a measure could only be carried into effect by violating the jurisdiction of a sovereign State of the Union and by assuming to alienate, without the color of rightful authority to do so, a portion of the territory claimed by the State.

With regard to the suggestion made by the undersigned in his note of the 29th of February, 1836, of the readiness of the President to apply to the State of Maine for her assent to the adoption of a conventional line making the river St. John, from its source to its mouth, the boundary between the United States and the adjacent British Provinces, Mr. Fox thinks it difficult to understand upon what grounds an expectation could have been formed that such a proposal could be entertained by the British Government, since such an arrangement would give to the United States even greater advantages than would be obtained by an unconditional acquiescence in their claim to the whole territory in dispute. In making the suggestion referred to, the undersigned expressly stated to Mr. Bankhead that it was offered, as the proposition on the part of Great Britain that led to it was supposed to have been, without regard to the mere question of acres—the extent of territory lost or acquired by the respective parties. The suggestion was submitted in the hope that the preponderating importance of terminating at once and forever this controversy by establishing an unchangeable and definite and indisputable boundary would be seen and acknowledged by Her Majesty's Government, and have a correspondent weight in influencing its decision. That the advantages of substituting a river for a highland boundary could not fail to be recognized was apparent from the fact that Mr. Bankhead's note of 28th December, 1835, suggested the river St. John from the point in which it is intersected by a due north line drawn from the monument at the head of the St. Croix to the southernmost source of that river as a part of the general outline of a conventional boundary. No difficulty was anticipated on the part of Her Majesty's Government in understanding the grounds upon which such a proposal was expected to be entertained by it, since the precedent proposition of Mr. Bankhead, just adverted to, although professedly based on the principle of an equal division between the parties, could not be justified by it, as it would have given nearly two-thirds of the disputed territory to Her Majesty's Government. It was therefore fairly presumed that the river line presented, in the opinion of Her Majesty's Government, advantages sufficient to counterbalance any loss of territory by either party that would follow its adoption as a boundary. Another recommendation of the river line, it was supposed, would be found by Her Majesty's Government in the fact that whilst by its adoption the right of jurisdiction alone would have been yielded to the United States over that portion of New Brunswick south of the St. John, Great Britain would have acquired the right of soil as well as of jurisdiction of the whole portion of the disputed territory north of the river. It is to be lamented that the imposing considerations alluded to have failed in their desired effect—that the hopes of the President in regard to them have not been realized, and consequently that Her Britannic Majesty's Government is not prepared at present to enter into an arrangement of the existing difference between the two nations upon the basis proposed.

It would seem to the undersigned, from an expression used in Mr. Fox's late communication, that some misapprehension exists on his part either as to the object of this Government in asking for information relative to the manner in which the report of a commission of exploration and survey might tend to a practical result in the settlement of the boundary question or as to the distinctive difference between the American proposal for the appointment of such a commission and the same proposition when modified to meet the wishes of Her Majesty's Government. Of the two modes suggested, by direction of the President, for constituting such a commission, the first is that which is regarded by Her Majesty's Government with most favor, viz, the commissioners to be chosen in equal numbers by each of the two parties, with an umpire selected by some friendly European sovereign to decide on all points on which they might disagree, with instructions to explore the disputed territory in order to find within its limits dividing highlands answering to the description of the treaty of 1783, in a due north or northwesterly direction from the monument at the head of the St. Croix, and that a right line drawn between such highlands and said monument should form so far as it extends a part of the boundary between the two countries, etc. It is now intimated that Her Majesty's Government will not withhold its consent to such a commission "if the principle upon which it is to be formed and the manner in which it is to proceed can be satisfactorily settled." This condition is partially explained by the suggestion afterwards made that instead of leaving the umpire to be chosen by some friendly European power it might be better that he should be elected by the members of the commission themselves, and a modification is then proposed that "the commission shall be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty." The American proposition is intended—and it agreed to would doubtless be successful—to decide the question of boundary definitively by the adoption of the highlands reported by the commissioners of survey, and would thus secure the treaty line. The British modification looks to no such object. It merely contemplates a commission of boundary analogous to that appointed under the fifth article of the treaty of Ghent, and would in all probability prove equally unsatisfactory in practice. Whether highlands such as are described in the treaty do or do not exist, it can scarcely be hoped that those called for by the modified instructions could be found. The fact that this question is still pending, although more than half a century has elapsed since the conclusion of the treaty in which it originated, renders it in the highest degree improbable that the two Governments can unite in believing that either the one or the other of the ranges of highlands claimed by the respective parties fulfills the required conditions of that instrument. The opinions of the parties have been over and over again expressed on this point and are well known to differ widely. The commission can neither reconcile nor change these variant opinions resting on conviction, nor will it be authorized to decide the difference. Under these impressions of the inefficiency of such a commission was the inquiry made in the letter of the undersigned of 5th March, 1836, as to the manner in which the report of the commission, as proposed to be constituted and instructed by Her Majesty's Government, was expected to lead to an ultimate settlement of the question of boundary. The results which the American proposition promised to secure were fully and frankly explained in previous notes from the Department of State, and had its advantages not been clearly understood this Government would not have devolved upon that of Her Majesty the task of illustrating them. Mr. Fox will therefore see that although the proposal to appoint a commission had its origin with this Government the modification of the American proposition was, as understood by the undersigned, so fundamentally important that it entirely changed its nature, and that the supposition, therefore, that it was rather for the Government of the United States than for that of Great Britain to answer the inquiry referred to is founded in misapprehension. Any decision made by a commission constituted in the manner proposed by the United States and instructed to seek for the highlands of the treaty of 1783 would be binding upon this Government and could without unnecessary delay be carried into effect; but if the substitute presented by Her Majesty's Government be insisted on and its principles be adopted, a resort will then be necessary to the State of Maine for her assent to all proceedings hereafter in relation to this matter, since if any arrangement can be made under it it can only be for a conventional line, to which she must of course be a party.

The undersigned, in conclusion, is instructed to inform Mr. Fox that if a negotiation be entertained at all upon the inconclusive and unsatisfactory basis afforded by the British counter proposition or substitute, which possesses hardly a feature in common with the American proposition, the President will not venture to invite it unless the authorities of the State of Maine, to whom, as before stated, it will be forthwith submitted, shall think it more likely to lead to a final adjustment of the question of boundary than the General Government deems it to be, though predisposed to see it in the most favorable light.

The undersigned avails himself of the occasion to renew to Mr. Fox the assurance of his distinguished consideration.

JOHN FORSYTH.

DEPARTMENT OF STATE,
Washington, March 1, 1838.

His Excellency EDWARD KENT,
Governor of the State of Maine.

SIR: The discussions between the Federal Government and that of Great Britain in respect to the northeastern boundary of the United States have arrived at a stage in which the President thinks it due to the State of Maine and necessary to the intelligent action of the General Government to take the sense of that State in regard to the expediency of opening a direct negotiation for the establishment of a conventional line, and if it should deem an attempt to adjust the matter of controversy in that form advisable, then to ask its assent to the same. With this view and to place the government of Maine in full possession of the present state of the negotiation and of all the discussions that have been had upon the subject, the accompanying documents are communicated, which, taken in connection with those heretofore transmitted, will be found to contain that information.

The principles which have hitherto governed every successive Administration of the Federal Government in respect to its powers and duties in the matter are—