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

by Unknown

With reference to the American proposition to make the river St. John from its mouth to its source the boundary, Mr. Fox remarked that it was difficult to understand upon what grounds any expectation could have been formed that such a proposal could be entertained by the British Government, for such an arrangement would give to the United States even greater advantages than they would obtain by an unconditional acquiescence in their claim to the whole of the disputed territory, because it would give to Maine all the disputed territory lying south of the St. John, and in exchange for the remaining part of the territory lying to the north of the St. John would add to the State of Maine a large district of New Brunswick—a district smaller in extent, but much more considerable in value, than the portion of the disputed territory which lies to the north of the St. John.

With regard to the proposition for the appointment of a commission of exploration and survey, Mr. Fox stated that Her Majesty's Government, with little expectation that it could lead to a useful result, but unwilling to reject the only plan left which seemed to afford a chance of making a further advance in this matter, would not withhold their consent to such a commission if the principle upon which it was to be formed and the manner in which it was to proceed could be satisfactorily settled; that of the two modes proposed in which such a commission might be constituted Her Majesty's Government thought the first, viz, that it might consist of commissioners named in equal numbers by each of the two Governments, with an umpire to be selected by some friendly European power, would be the best, but suggested that it might be better that the umpire should be selected by the members of the commission themselves rather than that the two Governments should apply to a third power to make such a choice; that the object of this commission should be to explore the disputed territory in order to find within its limits dividing highlands which might answer the description of the treaty, the search to be made in a north and northwest line from the monument at the head of the St. Croix; and that Her Majesty's Government had given their opinion that the commissioners should be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty.

In answer to the inquiry how the report of the commission would, according to the views of Her Majesty's Government, be likely when rendered to lead to an ultimate settlement of the boundary question, Mr. Fox observed that since the proposal for the appointment of a commission originated with the Government of the United States, it was rather for that Government than the Government of Great Britain to answer this question. Her Majesty's Government had already stated they had little expectation that such a commission could lead to any useful result, etc., but that Her Majesty's Government, in the first place, conceived that it was meant by the Government of the United States that if the commission should discover highlands answering to the description of the treaty a connecting line from them to the head of the St. Croix should be deemed to be a portion of the boundary between the two countries. Mr. Fox further referred the Secretary to the previous notes of Mr. McLane on the subject, in which it was contemplated as one of the possible results of the proposed commission that such additional information might be obtained of the features of the country as might remove all doubt as to the impracticability of laying down a boundary in accordance with the letter of the treaty. Mr. Fox said that if the investigations of the commission should show that there was no reasonable prospect of finding the line described in the treaty of 1783 the constitutional difficulties which now prevented the United States from agreeing to a conventional line might possibly be removed, and the way be thus prepared for a satisfactory settlement of the difference by equitable division of the territory; but, he added in conclusion, if the two Governments should agree to the appointment of such a commission, it would be necessary that their agreement should be by a convention, and it would be obviously indispensable that the State of Maine should be an assenting party to the arrangement.

In acknowledging the receipt of Mr. Fox's communication at the Department he was informed (7th February) that the President experienced deep disappointment in finding that the answer just presented on the part of the British Government to the proposition made by this Government with the view of effecting the settlement of the boundary question was so indefinite in its terms as to render it impracticable to ascertain without further discussion what were the real wishes and intentions of Her Majesty's Government respecting the appointment of a commission of exploration and survey, but that a copy of it would be transmitted to the executive of Maine for the purpose of ascertaining the sense of the State authorities upon the expediency of meeting the views of Her Majesty's Government so far as they were therein developed.

Occasion was taken at the same time to explain to Mr. Fox, in answer to the suggestion in his note of the 10th of January last, that the parallel of latitude adopted as a conventional substitute for the line designated in the treaty for the boundary westward from the Lake of the Woods passed over territory within the exclusive jurisdiction of the General Government, without trenching upon the rights or claims of any member of the Union, and the legitimate power of the Government, therefore, to agree to such line was held to be perfect, but that in acceding to a conventional line for the boundary eastward from the river Connecticut it would transcend its constitutional powers, since such a measure could only be carried into effect by violating the jurisdiction of a sovereign State and assuming to alienate a portion of the territory claimed by such State.

In reply to the observation of Mr. Fox that it was difficult to understand upon what ground an expectation could have been entertained that the proposition to make the St. John the boundary would be received by Her Majesty's Government, he was informed that the suggestion had been offered, as the proposition on the part of Great Britain that led to it was supposed to have been, with regard to the extent of territory lost or acquired by the respective parties, and in the hope that the great importance of terminating this controversy by establishing a definite and indisputable boundary would be seen and acknowledged by the British Government, and have a correspondent weight in influencing its decision; that the suggestion in Mr. Bankhead's note of 28th December, 1835, of a part of the river St. John as a portion of the general outline of a conventional boundary, apparently recognized the superior advantages of a river over a highland boundary, and that 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 alluded to, although based upon 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 Great Britain; that it was therefore fair to presume that the river line, in the opinion of His Majesty's Government, presented advantages sufficient to counterbalance any loss of territory by either party that might accrue from its adoption; and it was also supposed that another recommendation of this line would be seen by Great Britain 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 and jurisdiction of all the disputed territory north of that river.

To correct a misapprehension into which Mr. Fox appeared to have fallen, the distinctive difference between the American proposition for a commission and that proposition as subsequently modified by Great Britain was pointed out, and he was informed that although the proposal originated with this Government, the modification was so fundamentally important that it entirely changed the nature of the proposition, 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 preferred by the Secretary of State for information relative to the manner in which the report of the commission as proposed to be constituted and instructed by the British Government might tend to a practical result was unfounded. Mr. Fox was also given to understand that 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 be carried into effect without unnecessary delay; but if the substitute presented by Her Majesty's Government should be insisted on and its principles be adopted, it would then be necessary to resort to the State of Maine for her assent in all proceedings relative to the matter, since any arrangement under it can only be for a conventional line to which she must be a party.

In conclusion, it was intimated to Mr. Fox that if a negotiation be entertained by this Government at all upon the unsatisfactory basis afforded by the British counter proposition or substitute, the President will not invite it unless the authorities of the State of Maine shall think it more likely to lead to an adjustment of the question of boundary than the General Government deemed it to be, although predisposed to see it in the most favorable light.

Your excellency will perceive that in the course of these proceedings, but without abandoning the attempt to adjust the treaty line, steps necessary, from the want of power in the Federal Government, of an informal character, have been taken to test the dispositions of the respective Governments upon the subject of substituting a conventional for the treaty line. It will also be seen from the correspondence that the British Government, despairing of a satisfactory adjustment of the line of the treaty, avows its willingness to enter upon a direct negotiation for the settlement of a conventional line if the assent of the State of Maine to that course can be obtained.

Whilst the obligations of the Federal Government to do all in its power to effect a settlement of this boundary are fully recognized on its part, it has in the event of its being unable to do so specifically by mutual consent no other means to accomplish the object amicably than by another arbitration, or a commission, with an umpire, in the nature of an arbitration. In the contingency of all other measures failing the President will feel it to be his duty to submit another proposition to the Government of Great Britain to refer the decision of the question to a third party. He would not, however, be satisfied in taking this final step without having first ascertained the opinion and wishes of the State of Maine upon the subject of a negotiation for the establishment of a conventional line, and he conceives the present the proper time to seek it.