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

by Unknown

Mr. Bankhead, the British chargé d'affaires, in a note to the Department dated 28th December, 1835, stated that during the three years which had elapsed since the refusal of the Senate to agree to the award of the King of the Netherlands, although the British Government had more than once declared its readiness to abide by its offer to accept the award, the Government of the United States had as often replied that on its part that award could not be agreed to; that the British Government now considered itself by this refusal of the United States fully and entirely released from the conditional offer which it had made, and that he was instructed distinctly to announce to the President that the British Government withdrew its consent to accept the territorial compromise recommended by the King of the Netherlands.

With regard to the American proposition for the appointment of a new commission of exploration and survey, Mr. Bankhead could not see, since the President found himself unable to admit the distinction between the Bay of Fundy and the Atlantic Ocean, how any useful result could arise out of the proposed survey. He thought, on the contrary, that if it did not furnish fresh subjects of difference between the two Governments it could at best only bring the subject back to the same point at which it now stood.

To the suggestion of the President that the commission of survey should be empowered to decide the river question Mr. Bankhead said it was not in the power of His Majesty's Government to assent; that this question could not properly be referred to such a commission, because it turned upon the interpretation to be put upon the words of the treaty of 1783, and upon the application of that interpretation to geographical facts already well known and ascertained, and that therefore a commission of survey had no peculiar competency to decide such a question; that to refer it to any authority would be to submit it to a fresh arbitration, and that if His Majesty's Government were prepared to agree to a fresh arbitration, which was not the case, such arbitration ought necessarily, instead of being confined to one particular point alone, to include all the points in dispute between the two Governments; that His Majesty's Government could therefore only agree to such a commission provided there were a previous understanding between the two Governments; that although neither should be required to give up its own interpretation of the river question, yet "the commissioners should be instructed to search for highlands upon the character of which no doubt could exist on either side."

If this modification of the President's proposal should not prove acceptable, Mr. Bankhead observed, the only remaining way of adjusting the difference would be to abandon altogether the attempt to draw a line in conformity with the words of the treaty and to fix upon a convenient line, to be drawn according to equitable principles and with a view to the respective interests and the convenience of the two parties. He stated that His Majesty's Government were perfectly ready to treat for such a line, and conceived that the natural features of the disputed territory would afford peculiar facilities for drawing it; that His Majesty's Government would therefore propose an equal division of the territory in dispute between Great Britain and the United States, and that the general outline of such a division would be that the boundary between the two States should be drawn due north from the head of St. Croix River till it intersected the St. John; thence up the bed of the St. John to the southernmost source of that river, and from that point it should be drawn to the head of the Connecticut River in such manner as to make the northern and southern allotments of the divided territory as nearly as possible equal to each other in extent.

In reply to the preceding note the Secretary, under date of February 29, 1836, expressed the President's regret to find that His Britannic Majesty's Government adhered to its objection to the appointment of a commission to be chosen in either of the modes heretofore proposed by the United States and his conviction that the proposition on which it was founded, "that the river question was a treaty construction only," although repeated on various occasions by Great Britain, was demonstrably untenable, and, indeed, only plausible when material and most important words of description in the treaty are omitted in quoting from that instrument. He said that while His Majesty's Government maintain their position agreement between the United States and Great Britain on this point was impossible; that the President was therefore constrained to look to the new and conventional line offered in Mr. Bankhead's note, but that in such a line the wishes and interests of Maine were to be consulted, and that the President could not in justice to himself or that State make any proposition utterly irreconcilable with her previously well-known opinions on the subject; that the principle of compromise and equitable division was adopted by the King of the Netherlands in the line recommended by him, a line rejected by the United States because unjust to Maine; and yet that line gave to Great Britain little more than 2,000,000, while the proposition now made by His Majesty's Government secured to Great Britain of the disputed land more than 4,000,000 acres; that the division offered by Mr. Bankhead's note was not in harmony with the equitable rule from which it is said to spring, and if it were in conformity with it could not be accepted without disrespect to the previous decisions and just expectations of Maine. The President was far from attributing this proposition, the Secretary said, to the desire of His Majesty's Government to acquire territory. He doubted not that the offer, without regard to the extent of territory falling to the north or south of the St. John, was made by His Majesty's Government from a belief that the substitution of a river for a highland boundary would be useful in preventing territorial disputes in future; but although the President coincided in this view of the subject he was compelled to decline the boundary proposed as inconsistent with the known wishes, rights, and decisions of the State.

The Secretary concluded by stating that the President, with a view to terminate at once all controversy, and without regard to the extent of territory lost by one party or acquired by the other, to establish a definite and indisputable line, would, if His Majesty's Government assented to it, apply to the State of Maine for its consent to make the river St. John from its source to its mouth the boundary between Maine and His Britannic Majesty's dominions in that part of North America.

Mr. Bankhead acknowledged on the 4th March, 1836, the receipt of this note from the Department, and said that the rejection of the conventional line proposed in his previous note would cause His Majesty's Government much regret. He referred the Secretary to that part of his note of the 28th December last wherein the proposition of the President for a commission of exploration and survey was fully discussed, as it appeared to Mr. Bankhead that the Secretary had not given the modification on the part of His Majesty's Government of the American proposition the weight to which it was entitled. He said that it was offered with the view of meeting as far as practicable the wishes of the President and of endeavoring by such a preliminary measure to bring about a settlement of the boundary upon a basis satisfactory to both parties; that with this view he again submitted to the Secretary the modified proposal of His Majesty's Government, remarking that the commissioners who might be appointed were not to decide upon points of difference, but merely to present to the respective Governments the result of their labors, which, it was hoped and believed, would pave the way for an ultimate settlement of the question.

Mr. Bankhead considered it proper to state frankly and clearly that the proposition offered in the last note from the Department to make the river St. John from its source to its mouth the boundary between the United States and His Majesty's Province of New Brunswick was one to which the British Government, he was convinced, would never agree.

On the 5th March the Secretary expressed regret that his proposition to make the river St. John the boundary between Maine and New Brunswick would, in the opinion of Mr. Bankhead, be declined by his Government; that the Government of the United States could not, however, relinquish the hope that the proposal, when brought before His Majesty's cabinet and considered with the attention and deliberation due to its merits, would be viewed in a more favorable light than that in which it appeared to have presented itself to Mr. Bankhead. If, however, the Secretary added, this expectation should be disappointed, it would be necessary before the President consented to the modification of his previous proposition for the appointment of a commission of exploration and survey to be informed more fully of the views of the British Government in offering the modification, so that he might be enabled to judge how the report of the commission (which as now proposed to be constituted was not to decide upon points of difference) would be likely to lead to an ultimate settlement of the question of boundary, and also which of the modes proposed for the selection of commissioners was the one intended to be accepted, with the modification suggested by His Britannic Majesty's Government.

In January last Mr. Fox, the British minister at Washington, made a communication to the Department of State, in which, with reference to the objection preferred by the American Government that it had no power without the consent of Maine to agree to the arrangement proposed by Great Britain, since it would be considered by that State as equivalent to a cession of what she regarded as a part of her territory, he observed that the objection of the State could not be admitted as valid, for the principle on which it rested was as good for Great Britain as it was for Maine; that if the State was entitled to contend that until the treaty line was determined the boundary claimed by Maine must be regarded as the right one, Great Britain was still more entitled to insist on a similar pretension and to assert that until the line of the treaty shall be established satisfactorily the whole of the disputed territory ought to be considered as belonging to the British Crown, since Great Britain was the original possessor, and all the territory which had not been proved to have been by treaty ceded by her must be deemed to belong to her still. But Mr. Fox said the existence of these conflicting pretensions pointed out the expediency of a compromise; and why, he asked, as a conventional line different from that described in the treaty was agreed to with respect to the boundary westward from the Lake of the Woods, should such a line not be agreed to likewise for the boundary eastward from the Connecticut? Her Majesty's Government could not, he added, refrain from again pressing this proposition upon the serious consideration of the United States as the arrangement best calculated to effect a prompt and satisfactory settlement between the two powers.