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

by Unknown

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.