ROBERT P. DUNLAP.
STATE OF MAINE, IN HOUSE OF REPRESENTATIVES,
FEBRUARY 2, 1837.
The joint committee to whom was referred so much of the governor's message as relates to the northeastern boundary, and the documents and evidence, together with an order of the two houses instructing the committee "to inquire into the expediency of providing by law for the appointment of commissioners on the part of this State, by the consent of the Government of the United States, to survey the line between this State and the Province of New Brunswick according to the treaty of 1783, to establish monuments in such places as shall be fixed by said commissioners and by commissioners to be appointed on the part of the Government of Great Britain, have attended to the duties assigned them with the industry and solicitude which the importance of the subject demanded. Could the committee have spared the time and had the means to obtain documents not within the jurisdiction of the State, and consequently out of its power, a more clear, methodical, and perfect view of the subject would have been presented; but as there had been hitherto so much procrastination and the impatience of the public, already great, was becoming more and more intense, your committee without further preamble or apology ask leave to present the following report:
The legislature and people of Maine, we believe, will not contend that the treaty-making power of the United States does not extend to a final adjustment of a disputed and undefined line of boundary between a State and a foreign nation; but we do insist that no power is granted by the Constitution of the United States to limit or change the boundary of a State or cede a part of its territory without its consent. It is even by no means certain how far such consent would enable the treaty authority to exert its powers. Citizens might be made the subjects of a treaty transfer, and these citizens owing allegiance to the State and to the Union, and allegiance and protection being reciprocally binding, the right to transfer a citizen to a foreign government, to sell him, might well be questioned as being inconsistent with the spirit of our free institutions. But be this as it may, Maine will never concede the principle that the President and two-thirds of the Senate can transfer its territory, much less its citizens, without its permission, given by its constitutional organs.
Your committee, however, deem it but fair to admit that they have discovered no inclination in the General Government, or any department of it, to assume this power. On the contrary, the President has repeatedly declined the adoption of a conventional line deviating from the treaty of 1783, upon the express ground that it could not be done without the consent of Maine.
It is due, nevertheless, to the State of Maine to say that the committee have no evidence that any conventional line has been proposed to them for their consent. It indeed appears that the consent of Maine had not been given to the adoption of any other boundary than that prescribed by the treaty of 1783 up to the 29th February, 1836, and we are well assured that no proposition for a different boundary has since that time been made to any department of the government of this State.
The President of the United States on the 15th June last communicated to the Senate, in compliance with their resolution, a copy of the correspondence relative to the northeastern boundary. This correspondence embraced a period from the 21st July, 1832, to the 5th March, 1836.
The opinion and advice of the King of the Netherlands, to whom the controversy was referred by the provisions of the treaty of Ghent, was made on the 10th January, 1831, and of the three questions submitted, viz, the northeastern boundary, the northwesternmost head of Connecticut River, and the forty-fifth parallel of latitude, he seems to have determined but one. He did decide that the source of the stream running into and through Connecticut Lake is the true northwest head of that river as intended by the treaty of 1783; and as to the rest, he advises that it will be convenient (il conviendra) to adopt the "Thalweg," the deepest channel of the St. John and St. Francis, for the north line, and that the forty-fifth degree is to be measured in order to mark out the boundary to the St. Lawrence, with a deviation so as to include Rouses Point within the United States. As to the convenience of establishing the St. John and St. Francis as the northern boundary of Maine, we have only to observe that however "convenient" it may be to Great Britain to obtain so large a portion of our territory and waters, it would certainly be very inconvenient to us, and inasmuch as we are probably capable of judging of our own "convenience," and have never solicited the advice of anyone on this point, it is scarcely to be expected that we shall be advised to adopt a line so preposterous and injurious.
It was in this view and in strict conformity with the Constitution conferring the treaty power that the President on the 7th December, 1831, submitted to the Senate this "award" and "advice" of the King of the Netherlands. Senators were divided on a principal point, some insisting that to carry the award or opinion into effect was only in execution of the treaty, and it therefore belonged exclusively to the President "to take care" that this "supreme law" was faithfully executed or to reject it altogether.
But the prevailing opinion was that this "award" or "advice" was perfecting an unfinished treaty, and that therefore it could not be effected by the President without "the advice and consent of the Senate, two-thirds of the members present concurring therein." So far from the concurrence of two-thirds for the measure, there were thirty-four to eight against it, and it was consequently rejected, and a recommendation to the President was adopted to open a new negotiation to determine the line of boundary according to the treaty of 1783.