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

by Unknown

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."