A Compilation of the Messages and Papers of the Presidents. Volume 3, part 2: Martin Van Buren

by Unknown

First. That it has power to settle the boundary line in question with Great Britain upon the principles and according to the stipulations of the treaty of 1783, either by direct negotiation or, in case of ascertained inability to do so, by arbitration, and that it is its duty to make all proper efforts to accomplish this object by one or the other of those means.

Second. That the General Government is not competent to negotiate, unless, perhaps, on grounds of imperious public necessity, a conventional line involving a cession of territory to which the State of Maine is entitled, or the exchange thereof for other territory not included within the limits of that State according to the true construction of the treaty, without the consent of the State.

In these views of his predecessors in office the President fully concurs, and it is his design to continue to act upon them.

The attention of the Federal Government has, of course, in the first instance been directed to efforts to settle the treaty line. A historical outline of the measures which have been successively taken by it to that end may be useful to the government of Maine in coming to a conclusion on the proposition now submitted. It will, however, be unnecessary here to do more than advert to the cardinal features of this protracted negotiation.

The treaty of peace between the United States of America and His Britannic Majesty, concluded at Paris in September, 1783, defines the boundaries of the said States, and the following words, taken from the second article of that instrument, are intended to designate a part of the boundary between those States and the British North American Provinces, viz: "From the northwest angle of Nova Scotia, viz, that angle which is formed by a line drawn due north from the source of the St. Croix River to the highlands; along the said highlands which divide those rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean to the northwesternmost head of Connecticut River;" ... "east by a line to be drawn along the middle of the river St. Croix from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence." An immediate execution of some of the provisions of this treaty was, however, delayed by circumstances on which it is now unnecessary to dwell, and in November, 1794, a second treaty was concluded between the two powers. In the meantime, doubts having arisen as to what river was truly intended under the name of the St. Croix mentioned in the treaty of peace and forming a part of the boundary therein described, this question was referred by virtue of the fifth article of the new treaty to the decision of a commission appointed in the manner therein prescribed, both parties agreeing to consider such decision final and conclusive. The commissioners appointed in pursuance of the fifth article of the treaty of 1794 decided by their declaration of October 25, 1798, that the northern branch (Cheputnaticook) of a river called Scoodiac was the true river St. Croix intended by the treaty of peace.

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 chargé 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.