1643 Messages and Papers of the Presidents understanding which has been had between the Governments of the two countries, that no act of wrong to the property of either shall be committed during the pending of measures to produce an amicable adjustment of the controversy. In the meantime, I can not but earnestly protest against the authority of any appointment on the behalf of His Majesty’s Government which may be regarded as a claim to the executive protection of this property or be deemed an acquiescence on the part of the United States in an interference, usder color of a ‘‘ wardenship of the disputed territory,’’ with the direction to its improvement which the governments of Massachusetts and Maine, respectively, may see fit to give to their agents. The rights of soil and jurisdiction over it are in the States, and forbearance to the exer- cise of these rights for a season, from mere prudential considerations, a respectful regard to the wishes of the General Government, or amity toward a foreign nation is not to be construed into a readiness to surrender them upon the issue of any proposed negotiation. TI have the honor to be, sir, with sentiments of the highest respect, your obedient servant, LEVI LINCOLN. EXEcUrIVE DEPARTMENT OF MAINE, Augusta, November 23, 1833. Hon. Lours McLANE, Secretary of State of the United States, Washington. Srp: I have the honor to acknowledge the receipt of your letter of the 23d of Octo- ber last, communicating a copy of a note from Sir Charles R. Vaughan, accompanied with a copy of a letter from Sir Archibald Campbell, lieutenant-governor of New Brunswick, to Sir Charles R. Vaughan, and also of a letter from Lieutenant J. A. Mac- lauchlan to Sir Archibald Campbell, complaining of the conduct of the land agents of the States of Maine and Massachusetts in the territory in dispute between the United States and Great Britain. In compliance with your request to be furnished with information in relation to this subject, I reply that by a resolve of the legislature of this State passed March 30, 1831, ‘‘the land agent of this State, in conjunction with the land agent of the Commonwealth of Massachusetts, is autherized and empowered to survey, lay out, and make a suitable winter road, or cause the same to be done, from the mouth cf the Matawamkeag, a branch of the Penobscot River, in a northerly direction, so as to strike the Aroostook River on or near the line dividing the sixth and seventh ranges of townships.”” The same resolve authorizes the land agents to lay out and make, or cause to be made, a winter road from the village of Houlton, in a westerly direction, to intersect the road to the Aroostook River at some point most convenient for travel- ing and most for the interest of the State. By a subsequent resolve, passed March 8, 1832, the authority given to the land agents was enlarged so as to authorize them “to locate and survey the Aroostook road so that it may strike the Aroostook River at any place between the west line of the third range and the east line of the sixth range of townships west of the east line of the State.” The first of these roads has been surveyed and located, and much the greater part of it lies within the undisputed limits of this State south of the sources of the Penobscot River, and it is believed that no part of it lies within territory of which the British Government has ever been in the actual possession since the treaty of 1783. A portion of this road only has yet been opened, and I have no information that any part of it has been opened over terri- tory clarmed by the British, although it is contemplated to extend it to the Aroostook when it can be done consistently with the public interest. The second road described in the resolve of March 30, 1831, is wholly within the undisputed limits of this State. A report of the recent proceedings of* the land agent in making these roads and
Martin Van Buren 1644 disposing of the timber on the lands of the State has not been received, and his late sickness and death have rendered it impossible at this time to obtain a detailed state- ment of all that has been done in his official capacity. But it can not be presumed that he has in any particular exceeded his instructions (copies of which are herewith transmitted*), or, in the discharge of his official duties, taken any measures or author- ized any acts to be done which could justly be considered as a violation of any knowp provision of the existing arrangement between the Governments of the United States and Great Britain in regard to the disputed territory. With high consideration, I have the honor to be, sir, your obedient servant, \ SAML. E. SMITH. Sir Charles R. Vaughan to Mr. McLane. WasHINcYTon, December 23, 1833. Hon. Louis McLANE, etc.: The undersigned, His Britannic Majesty's envoy extraordinary and minister pleni- potentiary, has theshonor to acknowledge the receipt of the note of the Secretary of State of the United States, in answer to the representation which he was called upon to make respecting proceedings of the States of Massachusetts and Maine in the disputed territory. To understand correctly the bearings of the roads which those States have resolved to construct requires a more accurate knowledge of the topography of the country through which they are to pass than the undersigned possesses, but he will not fail to transmit a copy of Mr. McLane’s note, together with its inclosures, to His Majesty's lieutenant-governor of New Brunswick. In the meantime the under- signed begs leave to observe that the letter from the executive of Maine states that one of the roads surveyed and located lies, for the greater part of it, within the undis- puted limits of that State, although it is contemplated to extend it to the Aroostook River. The land agent of Massachusetts is aware that the road from the river _ Matawamkeag to the Aroostook is the one that has given rise to complaint, and which, he observes, ‘‘is now nearly completed.’? As the Aroostook River, from its source till it falls into the St. John, flows exclusively through the disputed territory, to reach it by a road from the State of Maine must cause an encroachment and be considered an attempt to assume a right of possession in territory which has never yet been set apart from the original possession of Great Britain, on account of the difficulties of ascertaining the boundary according to the treaty of 1783. With regard to the cutting down and sale of timber, the justification of the land agent at Boston will be submitted to Sir Archibald Campbell, and the undersigned is sure that the grievance complained of (taking away timber which had been seized by the agent from Massachusetts) will be attended to. The undersigned receives with great satisfaction the assurances of Mr. McLane that ‘‘a conciliatory and forbearing disposition prevails on the part of Massachusetts and Maine, and that no measure will be taken or any acts authorized by them which may justly be considered as a violation of the understanding in regard to the dis- puted territory;”’ and he can not conclude without begging leave to acknowledge the readiness with which the President directed inquiries to be made and the desire which he has shewn on this and every similar occasion to prevent any encroachment on the disputed territory pending the settlement of the boundary now in progress between the two Governments. The undersigned has the honor to assure Mr. McLane of his most distinguished consideration. CHAS. R. VAUGHAN. * Omitted.
1645 Messages and Papers of the Presidents Sir Charles R. Vaughan to Mr. McLane. WasHincton, February 28, 1834. Hon. Lovurs McLANE, etc.: The undersigned, His Britannic Majesty’s envoy extraordinary and minister pleni- potentiary, has the honor to communicate to the Secretary of State of the United States the explanation which he has received from the lieutenant-governor of New Brunswick of a transaction complained of by the land agent of Massachusetts in a report communicated to the undersigned in a note from Mr. McLane dated 21st December last. ; The complaint arose out of the seizure of timber cut down without authority upon the disputed territory, and which, after having been seized in the first instance by the land agent of Massachusetts, was taken possession of and sold by the British agent intrusted with the preservation of the disputed territory on the northeastern frontier of the United States. The explanation of this transaction is contained in an extract of a letter to the undersigned from the lieutenant-governor of New Brunswick and the report of Mr. Beckwith, the surveyor-general of that Province, which the thdersigned has the honor to inclose in this note.* The seizure of the timber in the first instance by Mr. Coffin, the land agent of Maine [Massachusetts], was the exercise of authority within the conventional fron- tier of the Province of New Brunswick, which could not be admitted so long as the northeastern boundary,of the United States remains a subject of negotiation; and it appears that the proceeds of the sale of timber unlawfully cut down are carried to account, and the possession of them will be appropriated to the party to which the territory may be adjudged by the settlement of the boundary question. The undersigned trusts that the explanation which he is now able to give of this transaction will prove satisfactory to the Government of the United States, The undersigned has the honor to renew to Mr. Mcl,ane the assurance of his most distinguished consideration. CHAS. R. VAUGHAN. Mr, McLane to Sir Charles R. Vaughan. DEPARTMENT OF STATE, . Washington, March 4, 1834. Right Hon. Srk Caarrxs R. VaucHaN, G. C. H., Envoy Extraordinary, etc. Str: I have the honor to acknowledge the receipt of your note of the 28th ultimo, furnishing the explanation of the lieutenant-governor of New Brunswick of u trans- action referred to by the land agent of Massachusetts in a letter addressed to his excellency the governor of that Commonwealth, and subsequently communicated to you by this Department in a note dated 21st December last, and to inform you that copies of your communication, together with the documents which accompanied it, will, by direction of the President, be transmitted without unnecessary delay to the executive of the State of Massachusetts. . I pray you to accept the assurance of my distinguished consideration. LOUIS McLANE. Mon. R. M. JoHNson, WASHINGTON, January 27, 1838. President of the Senate. Sir: I transmit herewith, in compliance with the requirements of the second section of the act of March 3, 1837, making appropriations for * Omitted.
Martin Van Buren 1646 the Indian Department, a communication from the War Department, accompanied by a copy of the report of the agents appointed to inquire what depredations had been committed by the Seminole and Creek Indians on the property of citizens of Florida, Georgia, and Alabama. M. VAN BUREN. [The same message was addressed to the Speaker of the House of Representatives. ] Wasaincron City, February 5, 1838. Hon. James K. Pore, Speaker of the House of Representatives. Srr: I have the honor to transmit to you a report from the Secretary of the Navy, prepared in obedience to a resolution of the House of Rep- resentatives of the 7th December last, requiring information as to the causés which have delayed the outfit and preparation of the South Sea surveying and exploring expedition. ’ M. VAN BUREN. \ Wasuincton, February, 1838. To the House of Representatives of the United States: In compliance with the resolution of the House of Representatives of the 2oth instant, I transmit a report from the Secretary of State, which is accompanied by a copy and translation of the pamphlet* requested in that resolution. M. VAN BUREN. WasHincron, February 17, 1838. To the Senate: I transmit for your constitutional action articles of a treaty concluded on the 23d ultimo with the Chippewas of Saganaw, accompanied by a communication from the Secretary of War. M. VAN BUREN. WASHINGTON, February 17, 18378. To the Senate: I transmit for your consideration a communication from the Secretary of War, respecting a treaty now before you with the Stockbridge and Munsee Indians. M. VAN BUREN *Issued by Manuel EF. de Gorostica, formerly minister from Mexico, before hie departure from the United States, containing the correspondence between the Department of State and the Mexi- can legation relative to the passage of the Sabine River by troops under the command of General Gaines.
1647 Messages and Papers of the Presidents Hon. J. K. Porx, WasHINcton, March, 1838. Speaker of the House of Representatives, Str: The inclosed report and accompanying papers from the Secretary of War contain all the information required by the resolution of the House of Representatives of the 5th instant, respecting the present state of the campaign in Florida and the disposition of the Indians to treat for peace. Very respectfully, your most obedient servant, M. VAN BUREN. Wasuincton, March 12, 1838. To the House of Representatives: I transmit for the consideration of Congress a report from the Secretary of State, with the accompanying documents, relative to an application made by the minister of France in behalf of Captain Beziers for remu- neration for services in saving the captain and crew of an American vessel wrecked in the bay of Cadiz in the year 1825. - I am happy to evince my high sense of the humane and intrepid con- duct of Captain Beziers by presenting his case to Congress, to whom alone it belongs to determine upon the expediency of granting his request. M. VAN BUREN. WasuHincton, March 13, 1838. The SPEAKER OF THE HOUSE OF REPRESENTATIVES: , In compliance with a resolution of the House of Representatives of the 17th of February, I transmit a report* of the Secretary of State, with the accompanying documents, which contain thé information requested. M. VAN BUREN. WasuincrTon, March 14, 1838. The PresIDENT OF THE SENATE: I transmit to the Senate a treaty of commerce and navigation between the United States and His Majesty the King of Greece, concluded at London on the 22d day of December last, together with a copy of the documents relating to the negotiation of the same, for the constitutional consideration of the Senate in reference to its ratification. M. VAN BUREN. WASHINGTON, March 15, 1838. To the House of Representatives of the United States: In compliance with the resolution of the House of Representatives of the 5th instant, I transmit a reportt from the Secretary of State, to whom the resolution was referred, with the documents by which the said Teport was accompanied. | M. VAN BUREN. * Relating to a ship canal across the Isthmus of Darien. } Relating to the prosecution of the claim of the United States to the bequest made by James Smithson. :
Martin Van Buren 1648 WASHINGTON, March, 1838. To the House of Representatives of the United States: I transmit a copy and translation of a letter from Mr. Pontois, the minister plenipotentiary from France to this Government, addressed to the Secretary of State, and communicating a memorial to me from the trustees of the former house of Lafitte & Co., of Paris, complaining of the rejection of a claim preferred in behalf of that house before the com- missioners under the convention with France of the 4th of July, 1831, and asking redress. ‘The commission created by the act for carrying that convention into effect has expired. The fund provided by it has been distributed among those whose claims were admitted. The Executive has no power over the subject. If the memorialists are entitled to relief, it can be granted by Congress alone, to whom, in compliance with the request of the trustees, that question is now submitted for decision. M. VAN BUREN. WasHIncton, March 19, 1838. To the House of Representatives of the United States: I transmit a report* from the Secretary of State, to whom the reso- lution of the House of Representatives of the 5th instant was referred, with the documents by which the said report was accompanied. M. VAN BUREN. Wasuincton, March 20, 1838. To the Senate of the United States: I herewith transmit to the Senate of the United States a report from the Secretary of State, accompanied by a copy of the correspondence tequested by their resolution of the 5th ultimo. M. VAN BUREN. DEPARTMENT OF STATE, Washington, March 7, 1838. The PRESIDENT OF THE UNITED STATES: The Secretary of State, to whom has been referred the resolution of the Senate of the 5th of February, requesting the President of the United States to communi- cate to that body, in such manner as he shall deem proper, all the correspondence recently received and had between this and the Governments of Great Britain and the State of Maine on the subject of the northeastern boundary, has the honor to report to the President the accompanying copy of letters, which comprise all the correspondence in the Department asked for by the resolution. Respectfully submitted. JOHN FORSYTH. * Relating to high duties and restrictions on tobacco imported into foreign countries from the United States, etc. ty
1649 Messages and Papers of the Presidents Mr. Fox to Mr. Forsyth. WASHINGTON, January 10, 1838. Hon, JoHN Forsyt#, etc.: The undersigned, Her Britannic Majesty's envoy extraordinary and minister pleni- potentiary, is directed by his Government to make the following observations to Mr. Forsyth, Secretary of State of the United States, with reference to certain points connected with the question of the northeastern boundary, which question forms the subject of the accompanying note, which the undersigned has the honor this day to address to Mr. Forsyth: The British Government, with a view to prevail upon that of the United States to come to an understanding with Great Britain upon the river question, had stated that the King of the Netherlands in his award had decided that question according to the British interpretation of it and had expressed his opinion that the rivers which fall into the Bay of Fundy are not to be considered as Atlantic rivers for the p' of the treaty. - Mr. Forsyth, however, in his note to Sir Charles Vaughan of the 28th of April, 1835, controverts this assertion and maintains that the King of the Netherlands did not in his award express such an opinion, and Mr. Forsyth quotes a passage from the award in support of this proposition. But it appears to Her Majesty’s Government that Mr. Forsyth has not correctly . perceived the] meaning of the passage which he quotes, for in the passage in question Mr. Forsyth apprehends that the word ‘‘a/one”’ is governed by the verb “include,’’ whereas an attentive examination of the context will show that the word “‘alone”’ is governed by the verb “‘divide,”’ and that the real meaning of the pas- sage is this: That the rivers flowing north and south from the highlands claimed’ by the United States may be arranged in two genera, the first genus comprehending the rivers which fall into the St. Lawrence, the second genus comprehending those whose waters in some manner or other find their way into the Atlantic; but that even if, according to this general classification and in contradistinction from rivers flow- ing into the St. Lawrence, the rivers which fall into the bays of Chaleurs and Fundy might be comprised in the same genus with the rivers which fall directly into the Atlantic, still the St. John and the Restigouche form a distinct species by themselvea and do not belong to the species of rivers which fall directly into the Atlantic, for the St. John and Restigouche are not divided in company with any such last: mentioned rivers. And the award goes on to say that, moreover, if this distinction between the two species were confounded an erroneous interpretation would be applied to a treaty in which every separate word must be supposed to have a mean- ing, and a generic distinction would be given to cases which are purely specific. The above appears to be the true meaning of the passage quoted by Mr, Forsyth; but if that passage had not been in itself sufficiently explicit, which Her Majesty's Government think it is, the passage which immediately follows it wov'd remove all doubt as to what the opinion of the King of the Netherlands was upon the river question, for that passage, setting forth reasons against the line of boundary claimed by the United States, goes on to say that such line would not even separate the St. Lawrence rivers immediately from the St. John and Restigouche, and that thus the rivers which this line would separate from the St. Lawrence rivers would need, i order to reach the Atlantic, the aid of two intermediaries—first, the rivers St. John and Restigouche, and, secondly, the bays of Chaleurs ana Fundy. Now it is evident from this passage that the King of the Netherlands deemed the bays of Fundy and Chaleurs to be, for the purposes of the treaty, as distinct and separate from the Atlantic Ocean as are the rivers St. John and Restigouche, for he specifically mentions those rivers and those bays as the channels throngh which certain rivers would have to pass in their way from the northern range of dividing
Martin Van Buren 1650 highlands down to the Atlantic Ocean; and it is clear that he considers that the waters of those highland rivers would not reach the Atlantic Ocean until! after they had traveled through the whole extent either of the Restigouche and the Bay of Chaleurs or of the St. John and the Bay of Fundy, as the case might be; and for this reason, among others, the King of the Netherlands declared it to be his opinion that the line north of the St. John claimed by the United States is not the line intended by the treaty. The undersigned avails himself of this occasion to renew to Mr. Forsyth the assurances of his high respect and consideration. H. S. FOX. Mr. Fox to Mr. Forsyth. : ‘WASHINGTON, January 12, 1838. Hon. JoHn ForsytH, etc.: The undersigned, Her Britannic Majesty’s envoy extraordinary and minister pleni- potentiary, has received the orders of his Gcvernment to make the following com- munication to the Secretary of State of the United States with reference to the question pending between the two Governments upon the subject of the northeastern boundary: The undersigned is, in the first instance, directed to express to Mr. Forsyth the sin- cere regret of Her Majesty’s Government that the long-continued endeavors of both parties to come to a settlement of this important matter have hitherto been unavail- ing. Her Majesty’s Government feel an undiminished desire to cooperate with the Cabinet of Washington for the attainment of an object of so much mutual interest, and they learn with satisfaction that their sentiments upon this point are fully shared by the actual President of the United States. The communications which during the last few years have taken place between the two Governments with reference tothe present subject, if they have not led to the solution of the questions at issue, have at least narrowed the field of future discussion. Both Governments have agreed to consider the award of the King of the Nether- lands as binding upon neither party, and the two Governments, therefore, are as free in this respect as they were before the reference to that Sovereign was made. The British Government, despairing of the possibility of drawing a line that shall be in literal conformity with the words of the treaty of 1783, has suggested that a conven- tional boundary should be substituted for the line described by the treaty, and has proposed that in accordance with the principles of equity and in pursuance of the gen- eral practice of mankind in similar cases the object of difference should be equally divided between the two differing parties, each of whom is alike convinced of the justice of its own claim. The United States Government has replied that to such an arrangement it has no power to agree; that until the line of the treaty shall have been otherwise deter- mined the State of Maine will continue to assume that the line which it claims is the true line of 1783, and will assert that all the land up to that line is territory of Maine; that consequently such a division of the disputed territory as is proposed by Great Britain would be considered by Maine as tantamount to a cession of what that State regards as a part of its own territory, and that the Federal Government has no power to agree to such an arrangement without the consent of the State concerned. Her Majesty’s Government exceedingly regrets that such an obstacle should exist to prevent that settlement which under all the circumstances of the case appears to be the simplest, the readiest, the most satisfactory, and the most just. Nor can Her Majesty’s Government admit that the objection of the State of Maine is well founded, for the principle on which that objection rests is as good for Great Britain as it is for Maine. If Maine thinks itself entitled to contend that until the true line described in the treaty is determined the boundary claimed by Maine must be regarded as the
1651 Messages and Papers of the Presidents right one, Great Britain is surely still more entitled to insist upon a similar preten- sion, and to assert that until the line of the treaty shall be established to the satis- faction of both parties the whole of the disputed territory ought to be considered as belonging to the British Crown, because Great Britain is the original possessor, and all the territory which has not been proved to have been by treaty ceded by her must be looked upon as belonging to her still. But the very existence of such conflict- ing pretensions seems to point out the expediency of a compromise, and what com- promise can be more fair than that which would give to each party one-half of the subject-matter of dispute? . Aconventional line different from that described in the treaty was agreed to, as stated by Mr. Forsyth in his note of the 28th of April, 1835, with respect to the bound- ary westward from the Lake of the Woods. Why should such a line not be agreed to likewise for the boundary eastward from the river Connecticut? Her Majesty’s Government can not refrain from again pressing this proposition upon the serious consideration of the Government of the United States as the arrange- ment which would be best calculated to effect a prompt and satisfactory settlement between the two powers. The Government of the United States, indeed, while it expressed a doubt of its being able to obtain the assent of Maine to the above-mentioned proposal, did, never- theless, express its readiness to apply to the State of Maine for the assent of that State to the adoption of another conventional line, which should make the river St. John from its source to its mouth the boundary between the two countries. But it is 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 such an arrangement would, in the first place, give to Maine all that part of the disputed territory which lies to the south of the St. John, and would, in the next place, in exchange for the remaining part of the disputed territory which lies to the north of the St. John, add to the State of Maine a large district of New Brunswick lying between the United States boundary and the south- ern part of the course of the St. John—a district smaller, indeed, in extent, but much more considerable in value, than the portion of the disputed territory which lies to the north of the St. John. But with respect to a conventional line generally, the Government of Washington has stated that it has not at present the powers constitutionally requisite for treating for such a line and has no hopes of obtaining such powers until the impossibility of establishing the line described by the treaty shall have been completely demon- strated by the failure of another attempt to trace that line by a local survey. Under these circumstances it appears that a conventional line can not at present be agreed upon, and that such a mode of settlement is in the existing state of the negotiation impossible. Thus, then, the award of the King of the Netherlands has been abandoned by both parties in consequence of its rejection by the American Senate, and a negotiation between the two Governments for a conventional line suited to the interests and convenience of the two parties has for the present been rendered impossible by diffi- culties arising on the part of the United States; and both Governments are alike averse to a new arbitration. In this state of things the Government of the United States has proposed to the British cabinet that another attempt should be made to trace out a boundary according to the letter of the treaty, and that a commission of exploration and survey should be appointed for that purpose. Her Majesty’s Government have little expectation that such a commission could lead to.any useful result, and on that account would be disposed to object to the measure; bnt at the same time they are so unwilling to reject the only plan now left
Martin Van Buren 1652 which seems to afford a chance of making any further advance in this long-pending matter that they will not withhold their consent to such a commission if the princi- ple upon which it is to be formed and the manner in which it is to proceed can be satisfactorily settled. The United States Government have proposed two modes in which such a com- mission might be constituted: First, 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; secondly, that it might be entirely composed of scientific Europeans, to be selected by a friendly sovereign, and might be accompa- nied in its operations by agents of the two different parties, in order that such agents might give to the commissioners assistance and information. If such a commission were to be appointed, Her Majesty’s Government think that the first of these two modes of constructing it would be the best, and that it should consist of members chosen in equal numbers by each of the two Governments. It might, however, 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. The object of this commission, as understood by Her Majesty’s Government, would be to explore the disputed territory in order to find within its limits dividing high- lands which may answer the description of the treaty, the search being first to be made in the due north line from the monument at the head of the St. Croix, and if no such highlands should be found in that meridian the search to be then continued to the westward thereof; and Her Majesty’s Government have stated their opinion that in order to avoid all fruitless disputes as to the character of such highlands the commissioners should be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty. The United States Secretary of State, in his note of the 5th of March, 1836, expresses a wish to know how the report of the commissioners would, according to the views of Her Majesty’s Government, Le likely when rendered to lead to an ultimate settle- ment of the question of boundary between the two Governments. In reply to this inquiry Her Majesty’s Government would beg to observe that the proposal to appoint a commission originated not with them, but with the Govern- ment of the United States, and that it is therefore rather for the Government of the United States than for that of Great Britain to answer this question. Her Majesty's Government have themselves already stated that they have little expectation that such a commission could lead to any useful result, and that they would on that account be disposed to object to it; and if Her Majesty's Government were now to agree to appoint such a commission it would be only in compliance with the desire so strongly expressed by the Government of the United States, and in spite of doubts (which Her Majesty’s Government still continue to entertain) of the efficacy of the measure. But with respect to the way in which the report of the commission might be likely to lead to an ultimate settlement of the question, Her Majesty’s Government, in the first place, conceive 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 drawn from these highlands to the head of the St. Croix should be deemed to be a portion of the boundary line between the two countries. But Her Majesty’s Government would further beg to refer the United States Secre- tary of State to the notes of Mr. McLane of the 5th of June, 1833, and of the 11th | and 28th of March, 1834, on this subject, in which it will be seen that the Govern- ment of the United States appears to have contemplated as one of the possible results of the proposed commission of exploration that such additional information might possibly be obtained! respecting the features of the country in the district to which the treaty relates as might remove all doubt as to the impracticability of laying down a boundary in accordance with the letter of the treaty.
1653 Messages and Papers of the Presidents And if the investigations of the proposed commission should show that there is no reasonable prospect of finding a line strictly conformable with the description con-, tained in the treaty of 1783, the constitutional difficulties which now prevent the United States from agreeing to a conventional line may possibly be removed, and the way may thus be prepared for the satisfactory settlement of the difference by an equitable division of the disputed territory. But if the two Governments should agree to the appcintment of such a commission it would be necessary that their agreement should be first recorded in a convention, and it would obviously be indispensable that the State of Maine should be an assent- ing party to the arrangement. The undersigned, in making the above communication by order of Her Majesty’s Government to the United States Secretary of State, Mr. Forsyth, has the honor to renew to him the assurance of his high respect and consideration. H. S. FOX. Mr, Forsyth to Mr. Fox. DEPARTMENT OF STATE, Washington, February 6, 1838. Henry S. Fox, Esq., etc.: The undersigned, Secretary of State of the United States, has the honor to acknowl- edge the receipt of the note of Mr. Fox, envoy extraordinary and minister plenipo- tentiary of Her Britannic Majesty. of the roth ultimo, in which he presents, by direction of his Government, certain observations 1n respect to the construction to be given to that part of the award of the arbiter on the question of the northeastern boundary which relates to the character in which the rivers St. John and Restigouche are to be regarded in reference to that question. Sir Charles Vaughan, in his note to Mr. Mciane of February 10, 1834, alleged that although the arbiter had not decided the first of the three main questious proposed to kim, yet that he had determined certain subordinate points connected with that question upon which the parties had entertained different views, and among others that the rivers St. John and Resti- gouche could not be considered, according to the meaning of the treaty, as “‘ rivers flowing into the Atlantic.” The undersigned, in his note to Sir Charles R. Vaughan of the 28th of April, 1835, questioned the correctness of the interpretation which had been given by Sir Charles to the award of the arbiter in this particular, and after quoting that part of the award to which Sir Charles was supposed to refer as contain- ing the determination by the arbiter of the point just mentioned observed that it could not but appear from further reflection to Sir Charles that the declaration that the rivers St. John and Restigouche could not be a/one taken into view without hazard in determining the disputed boundary was not the expression of an opinion that they should be altogether excluded in determining that question; or, in other words, that they could not be looked upon as rivers emptying into the Atlantic. The remarks presented by Mr. Fox in the note to which this is a reply are designed to shew a misconception on the part of the undersigned of the true meaning of the pas- sage cited by him ‘rom the award and to support the construction which was given to it by Sir Charles Vaughan. Whether the apprehension entertained by the one party or the other of the opinion of the arbiter upon this minor point be correct is regarded by the undersigned as a matter of no consequence in the settlement of the main question. The Government of the United States. never having acquiesced in the decision of the arbiter that ‘‘ the nature of the difference and the vague and not sufficiently determinate stipulations of the treaty of 1783 do not permit the adjudica- tion of either of the two lines respectively claimed by the interested parties to one of the said parties without wounding the principles of law and equity with regard to the other,’’ can not consent to be governed in the prosecution of the existing
Martin Van Buren e 1654 negotiation by the opinion of the arbiter upon any of the preliminary points about which there was a previous difference between the parties, and the adverse decision of which has led to so unsatisfactory and, in the view of this Government, so errone- ous a conclusion. This determination on the part of the United States not to adopt the premises of the arbiter while rejecting his conclusion has been heretofore made known to Her Majesty’s Government, and while it remains must necessarily render the discussion of the question what those premises were unavailing, if not irrelevant. The few observations which the undersigned was led to make in the course of his note to Sir Charles Vaughan upon one of the points alleged to have been thus deter- mined were prompted only by a respect for the arbiter and a consequent anxiety to remove a misinterpretation of his meaning, which alone, it was believed, could induce the supposition that the arbiter, in searching for the rivers referred to in the treaty as designating the boundary, could have come to the opinion that the two great rivers whose waters pervaded the whole district in which the search was made and consti- tuted the most striking objects of the country had been entirely unnoticed by the negotiators of the treaty and were to be passed over unheeded in determining the line, while others were to be sought for which he himself asserts could not be found. That the imputation of such an opinion to the respected arbiter could only be the result of misinterpretation seemed the more evident, as he had himself declared that ‘it could not be sufficiently explained how, if the high contracting parties intended in 1783 to establish the boundary at the south of the river St. John, that river, to which the territory in dispute was in a great measure indebted for its distinctive character, had been neutralized and set aside.’’ It is under the influence of tlie same motives that the undersigned now proceeds to make a brief comment upon the obser- vations contained in Mr. Fox’s note of the roth ultimo, and thus to close a discussion which it can answer no purpose to prolong. The passage from the award of the arbiter quoted by the undersigned in his note of the 28th April, 1835, to Sir Charles Vaughan, and the true meaning of which Mr. Fox supposes to have been misconceived, is the following: ‘If in contradistinction to the rivers that empty themselves into the river St. Lawrence it had been proper, agreeably to the language ordinarily used in geography, to comprehend the rivers falling into the bays Fundy and Des Chaleurs with those emptying themselves directly into the Atlantic Ocean in the generical denomination of rivers falling into the Atlantic Ocean it would be hazardous to include into the species belonging to that class the rivers St. John and Restigouche, which the line claimed at the north of the river St. John divides immediately from rivers emptying themselves into the river St. Lawrence, not with other rivers falling into the Atlantic Ocean, but alone, and thus to apply in interpreting the delimitation established by a treaty, where each word must have a meaning, to two exclusively special cases, and where no men- tion is made of the genus (genre), a generical expression which would ascribe to them a broader meaning,”’ etc. It was observed by the undersigned that this passage did not appear to contain an expression of opinion by the arbiter that the rivers St. John and Restigouche should be altogether excluded in determining the question of disputed boundary, or, in other words, that they could not be looked upon as ‘‘rivers emptying into the Atlantic.” Mr. Fox alleges this to be a misconception of the meaning of the arbiter, and sup- poses it to have arisen from an erroneous apprehension by the undersigned that the word ‘‘alone’’ is governed by the verb ‘‘include,’’ whereas he thinks that an atten- tive examination of the context will shew that the word ‘‘a/one"’ is governed by the _ verb “‘divide,’’ and that the real meaning of the passage is this: ‘‘That the rivers flowing north and south from the highlands claimed by the United States may be arranged in two genera, the first genus comprehending the rivers which fall into the St. Lawrence, the second genus comprehending those whose waters in some manner ‘ or other find their way into the Atlantic; but that even if, according to the general
1655 Messages and Papers of the Presidents classification and in contradistinction from rivers flowing into the St. Lawrence, the rivers which fall into the bays of Chaleurs and Fundy might be comprised in the same genus with the rivers which fall directly into the Atlantic, still the St. John and the Restigouche form a distinct species by themselves and do not belong to the species of rivers which fall directly into the Atlantic, for the St. John and Restigouche are not divided in company with any suck last-mentioned rivers.” The undersigned considers it unnecessary to enter into the question whether according to the context the circumstance expressed by the adverb “‘alone”’ has reference to the verb ‘‘divide’’ or to the verb ‘‘include,’’ because even allowing it to refer to the former it does not appear to the undersigned that his interpretation of the passage is thereby impaired or that of Mr. Fox sustained, The undersigned conceives that the arbiter contem- plated two different species of rivers as admissible into the genus of those which ‘fall into the Atlantic,’’ to wit, those which fall directly into the Atlantic and those which fall into it indirectly; that the arbiter was further of opinion, though at variance with the idea entertained in’that respect by the United States, that the rivers St. John and Restigouche, emptying their waters into the bays of Fundy and Des Chaleurs, did not belong to the species of rivers falling directly into the Atlantic; that if they were considered alone, therefore, the appellation of ‘‘ rivers falling into the Atlantic Ocean’? could not be regarded as applicable to them, because, to use the language of the award, it would be ‘“‘applying to two exclusively special cases, where no mention was made of the genus, a generical expression which would ascribe to them a broader meaning;’’ but it is not conceived that the arbiter intended to express an opinion that these rivers might not be included with others in forming the genus of rivers described by the treaty as those which ‘‘fall into the Atlantic,”’ and that upon this ground they should be wholly excluded in determining the question of the disputed bound- ary. While, therefore, the undersigned agrees with Mr. Fox that the arbiter did not consider these rivers as falling directly into the Atlantic Ocean, the undersigned can not concur in Mr. Fox's construction when he supposes the arbiter to give as a reason for this that they are not divided in company with any such last-mentioned rivers—that is, with rivers falling directly into the Atlantic. Conceding as a point which it is deemed unnecessary for the present purpose to discuss that the gram- matical construction of the sentence contended for by Mr. Fox is the correct one, the arbiter is understood to say only that those rivers are not dividéd éxmediately with others falling into the Atlantic, either directly or indirectly, but he does not allege this to be a sufficient reason for excluding them when connected with other rivers divided mediately from those emptying into the St. Lawrence from the genus of rivers ‘‘falling into the Atlantic.” On the contrary, it is admitted in the award that the line claimed to the north of the St. John divides the St. John and Restigouche in company with the Schoodic Lakes, the Penobscot, and the Kennebec, which are stated as emptying themselves directly into the Atlantic; and it is strongly implied in the language used by the arbiter that the first-named rivers might, in his opinion, be classed for the purposes of the treaty with those last named, though not in the same species, yet in the same genus of ‘‘Atlantic rivers.” The reason why the St. John and Restigouche were not permitted to determine the question of boundary in favor of the United States is understood to have been, not that they were to be wholly excluded as rivers not falling into the Atlantic Qcean, as Mr. Fox appears to suppose, but because in order to include them in that genus of rivers they must be considered in connection with other rivers which were not _ divided immediately, like themselves, from the rivers falling into the St. Lawrence, but mediately only; which would introduce the principle that the treaty of 1783 meant highlands that divide as well mediately as immediately the rivers that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean-- a principle which the arbiter did not reject as unfounded or erroneous, but which, considered in connection with the other points which he had decided, he regarded
Martin Van Buren 1656 as equally realized by both lines, and therefore as constituting an equal weight in either scale, and consequently affording him no assistance in determining the dis- pute between the respective parties. The arbiter appears to the undersigned to have viewed ‘the rivers St. John and Restigouche as possessing both a specific and a generic character; that considered alone they were specific, and the designation in the treaty of ‘rivers falling into the Atlantic” was inapplicable to them; that considered in connection with other rivers they were generic and were embraced in the terms of the treaty, but that as their connection with other rivers would bring them within a principle which, according to the views taken by him of other parts of the question, was equally realized by both lines, it would be hazardous to allow them any weight in deciding the disputed boundary. It has always been contended by this Government that the rivers St. John and Restigouche were to be considered in connection with the Penobscot and Kennebec in determining the highlands called for by the treaty, and the arbiter is not understood to deny to them, when thus connected, the character of ‘‘rivers fall- ing into the Atlantic Ocean.” This construction of the arbiter’s meaning, derived from the general tenor of the context, it will be perceived, is not invalidated by the next succeeding paragraph cited by Mr. Fox, in which the bays of Fundy and Des Chaleurs are spoken of as intermediaries whereby the rivers flowing into the St. John and Restigouche reach the Atlantic Ocean, inasmuch as such construction admits the opinion of the arbiter to have been that the St. John and Restigouche do not fall divectly into the Atlan- tic, and that they thus constitute a species by themselves, while it denies that they are therefore excluded by the arbiter from the genus of ‘‘ rivers falling into the Atlantic.”’ The undersigned avails himself of this opportunity to renew to Mr. Fox the assur- ance of his distinguished consideration. _ ‘JOHN FORSYTH. Mr. Forsyth to Mr. Fox. . DEPARTMENT OF STATE, Washington, February 7, 1838. Hewry S. Fox, Esq., etc.: The undersigned, Secretary of State of the United States, has the honor to acknowl- edge the receipt of the note addressed to him on the roth ultimo by Mr. Fox, Her Britannic Majesty’s envoy extraordinary and minister plenipotentiary at Washing- ton, with regard to the question pending between the two Governments upon the subject of the northeastern boundary, and to inform him that his communication has been submitted to the President. It has received from iim the attentive exam- ination due to a paper expected to embody the views of Her Britannic Majesty’s Government in reference to interests of primary importance to both countries. But whilst the President sees with satisfaction the expression it contains of a continued desire on the part of Her Majesty’s Government to cooperate with this in its earnest endeavors to arrange the matter of dispute between them, he perceives with feelings of deep disappointment that the answer now presented to the propositions made by this Government with the view of effecting that object, after having been so long delayed, notwithstanding the repeated intimations that it was looked for here with much anxiety, is so indefinite in its terms as to render it impracticable to ascertain without further discussion what are the real wishes and intentions of Her Majesty's Government respecting the proposed appointment of a commission of exploration and survey to trace out a bour:uary according to the letter of the treaty of 1783. The President, however, for the p: rpose of placing in the possession of the State of Maine the views of Her Majesty’s Government as exhibited in Mr. Fox's note, and of ascer- taining the sense of the State authorities upon the expediency of meeting those views
1657 Messages and Papers of the Presidents as far as they are developed therein, has directed the undersigned to transmit a copy of it to Governor Kent for their consideration. This will be accordingly done with- out unnecessary delay, and the result when obtained may form the occasion of a further communication to Her Majesty’s minister. In the meantime the undersigned avails himself of the present occasion to offer a few remarks upon certain parts of Mr. Fox’s note of the roth ultimo. After advert- ing to the suggestion heretofore made by the British Government that a conventional line equally dividing the territory in dispute between the two parties should be substituted for the line described by the treaty, and regretting the constitutional incompetency of the Federal Government to agree to such an arrangement without the consent of the State of Maine, Mr. Fox refers to the conventional line adopted, although different from that designated by the treaty, with respect to the boundary westward from the Lake of the Woods, and asks, ‘‘Why should such a line not be agreed to likewise for the boundary eastward from the river Connecticut?’? The reply to this question is obvious. The parallel of latitude adopted on the occasion referred to as a conventional substitute for the treaty line passed over territory within the exclusive jurisdiction of the General Government without trenching upon the rights or claims of any individual member of the Union, and the legitimate power of the Government, therefore, to agree to such line was perfect and unquestioned. Now in consenting to a conventional line for the boundary eastward from the river Connecticut the Government of the United States would transcend its constitutional powers, since such a measure could only be carried into effect by violating the juris- diction of a sovereign State of the Union and by assuming to alienate, without the color of rightful authority to do so, a portion of the territory claimed by the State. With regard to the suggestion made by the undersigned in his note of the 29th of February, 1836, of the readiness of the President to apply to the State of Maine for her assent to the adoption of a conventional line making the river St. John, from its source to its mouth, the boundary between the United States and the adjacent Brit- ish Provinces, Mr. Fox thinks it difficult to understand upon what grounds an expectation could have been formed that such a proposal could be entertained by the British Government, since such an arrangement would give to the United States even greater advantages than would be obtained by an unconditional acquiescence in their claim to the whole territory in dispute. In making the suggestion referred to, the undersigned expressly stated to Mr. Bankhead that it was offered, as the prop- osition on the part of Great Britain that led to it was supposed to have been, with- out regard to the mere question of acres—the extent of territory lost or acquired by the respective parties. The suggestion was submitted in the hope that the prepon- derating importance of terminating at once and forever this controversy by estab- lishing an unchangeable and definite and indisputable boundary would be seen and acknowledged by Her Majesty’s Government, and have a correspondent weight in influencing its decision. That the advantages of substituting a river for a highland boundary could not fail to be recognized was apparent from the fact that Mr. Bank- head’s note of 28th December, 1835, suggested the river St. John from the point in which it is intersected by a due north line drawn from the monument at the head of the St. Croix to the southernmost source of that river as a part of the general out- line of a conventional boundary. 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. Bank- head, just adverted to, although professedly based on the principle of an equal divi- sion between the parties, could not be justified by it, as it would have given nearly two-thirds of the disputed territory to Her Majesty’s Government. It was therefore fairly presumed that the river line presented, in the op’ 1ion of Her Majesty’s Gov- ernment, advantages sufficient to counterbalance any loss of territory by either party that would follow its adoption asa boundary. Another recommendation of the river
Martin Van Buren 1658 line, it was supposed, would be found by Her Majesty’s Government 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 as well as of jurisdiction of the whole portion of the disputed territory north of the river. It is to be lamented that the imposing considerations alluded to have failed in their desired effect—that the hopes of the President in regard to them have not been realized, and consequently that Her Britannic Majesty’s Government is not prepared at present to enter into an arrange. ment of the existing difference between the two nations upon the basis proposed. It would seem to the undersigned, from an expression used in Mr. Fox’s late com- munication, that some misapprehension exists on his part either as to the object of this Government in asking for information relative to the manner in which the report of a commission of exploration and survey might tend to a practical result _ in the settlement of the boundary question or as to the distinctive difference between the American proposal for the appointment of such a commission and the same propo- sition when modified to meet the wishes of Her Majesty’s Government. Of the two modes suggested, by direction of the President, for constituting such a commission, the first is that which is regarded by Her Majesty’s Government with most favor, viz, the commissioners to be chosen in equal numbers by each of the two parties, with an umpire selected by some friendly European sovereign to decide on all points on which they might disagree, with instructions to explore the disputed territory in order to find within its limits dividing highlands answering to the description of the treaty of 1783, in a due north or northwesterly direction from the monument at the head of the St. Croix, and that a right line drawn between such highlands and said monument should form so far as it extends a part of the boundary between the two countries, etc. It is now intimated that Her Majesty’s Government will not withhold its consent to such a commission ‘if the principle upon which it is to be formed and the manner in which it is to proceed can be satisfactorily settled.” This condition is partially explained by the suggestion afterwards made that instead of leaving the umpire to be chosen by some friendly European power it might be bet- ter that he should be elected by the members of the commission themselves, and a modification is then proposed that ‘‘the commission shall be instructed to look for highlands which both parties might acknowledge as fulfilling the conditions of the treaty.’? The American proposition is intended—and if agreed to would doubtless be successful—to decide the question of boundary definitively by the adoption of the highlands reported by the commissioners of survey, and would thus secure the treaty line. The British modification looks to no such object. It merely contemplates a commission of boundary analogous to that appointed under the fifth article of the treaty of Ghent, and would in all probability prove equally unsatisfactory in practice. Whether highlands such as are described in the treaty do or do not exist, it can scarcely be hoped that those called for by the modified instructions could be found. The fact that this question is still pending, although more than half a century has elapsed since the conclusion of the treaty in which it originated, renders it in the highest degree improbable that the two Governments can unite in believing that either the one or the other of the ranges of highlands claimed by the respective par- ties fulfills the required conditions of that instrument. The opinions of the parties have been over and over again expressed on this point and are well known to differ widely. The commission can neither reconcile nor change these variant opinions resting on conviction, nor will it be authorized to decide the difference, Under these impressions of the inefficiency of such a commission was the inquiry made in the letter of the undersigned of 5th March, 1836, as to the manner in which the report of the commission, as proposed to be constituted and instructed by Her Maj- esty’s Government, was expected to lead to an ultimate settlement of the question of boundary. ‘The results which the American proposition promised to secure were
1659 Messages and Papers of the Presidents fully and frankly explained in previous notes from the Department of State, and had its advantages not been clearly understood this Government would not have devolved upon that of Her Majesty the task of illustrating them. Mr. Fox will therefore see that although the proposal to appoint a commission had its origin with this Govern- ment the modification of the American proposition was, as understood by the under- signed, so fundamentally important that it entirely changed its nature, 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 referred to is founded in mis- apprehension. Any decision made by a commission constituted in the manner pro- posed by the United States and instructed to seek for the highlands of the treaty of 1783 would be binding upon this Government and could without unnecessary delay be carried into effect; but if the substitute presented by Her Majesty’s Government be insisted on and its principles be adopted, a resort will then be necessary to the State of Maine for her assent to all proceedings hereafter in relation to this matter, since if any arrangement can be made under it it can only be for a conventional line, to which she must of course be a party. The undersigned, in conclusion, is instructed to inform Mr. Fox that if a negotia- tion be entertained at all upon the inconclusive and unsatisfactory basis afforded by the British counter proposition or substitute, which possesses hardly a feature in com- mon with the American proposition, the President will not venture to invite it unless the authorities of the State of Maine, to whom, as before stated, it will be forthwith submitted, shall think it more likely to lead to a final adjustment of the question of boundary than the General Government deems it to be, though predisposed to see it in the most favorable light. The undersigned avails himself of the occasion to renew to Mr. Fox the assurance of his distinguished consideration. JOHN FORSYTH. DEPARTMENT OF STATE, His Excellency EDwarRD KENT, Washington, March 1, 1838. Governor of the State of Maine. Str: The discussions between the Federal Government and that of Great Britain in respect to the northeastern boundary of the United States have arrived at a stage in which the President thinks it due to the State of Maine and necessary to the intelli- gent action of the General Government to take the sense of that State in regard to the expediency of opening a direct negotiation for the establishment of a conven- tional line, and if it should deem an attempt to adjust the matter of controversy in that form advisable, then to ask its assent to the same. With this view and to place the government of Maine in full possession of the present state of the negotiation and of all the discussions that have been had Upon the subject, the accompanying documents are communicated, which, taken in connection with those heretofore transmitted, will be found to contain that information. The principles which have hitherto governed every successive Administration of the Federal Government in respect to its powers and duties in the matter are— First. That it has power to settle the boundary line in question with Great Britain upon the principles and according to the stipulations of the treaty of 1783, either by direct negotiation or, in case of ascertained inability to do so, by arbitration, and that it is its duty to make all proper efforts to accomplish this object by one or the other of those means. Second. That the General Government is not competent to negotiate, unless, per- haps, on grounds of imperious public necessity, a conventional line involving a ces- sion of territory to which the State of Maine is entitled, or the exchange thereof for other territory not included within the limits of that State according to the true construction of the treaty, without the consent of the State.
Martin Van Buren 1660 In these views of his predecessors in office the President fully concurs, and it is his design to continue to act upon them. The attention of the Federal Government has, of course, in the first instance been directed to efforts to settle the treaty line. A historical outline of the measures which have been successively taken by it to that end may be useful to the government of Maine in coming to a conclusion on the proposition now submitted. It will, how- ever, be unnecessary here to do more than advert to the cardinal features of this pro- tracted negotiation. The treaty of peace between the United States of America and His Britannic Majesty, concluded at Paris in September, 1783, defines the boundaries of the said States, and the following words, taken from the second article of that instrument, are intended to designate a part of the boundary between those States and the Brit- ish North American Provinces, viz: ‘‘ From the northwest angle of Nova Scotia, viz, . that angle which is formed by a line drawn due north from the source of the St. Croix River to the highlands; along the said highlands which divide those rivera that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean to the northwesternmost head of Connecticut River;” * * * ‘‘east by a line to be drawn along the middle of the river St. Croix from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid high- lands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence.’’ /n immediate execution of some of the provisions of this treaty was, however, delayed by circumstances on which it is now unneces- sary to dwell, and in November, 1794, a second treaty was concluded between the two powers. In the meantime, doubts having arisen as to what river was truly intended under the name of the St. Croix mentioned in the treaty of peace and form- ing a part of the boundary therein described, this question was referred by virtue of the fifth article of the new treaty to the decision of a commission appointed in the manner therein prescribed, both parties agreeing to consider such decision final and conclusive. The commissioners appointed in pursuance of the fifth article of the treaty of 1794 decided by their declaration of October 25, 1798, that the northern branch (Cheputnaticook) of a river called Scoodiac was the true river St. Croix intended by the treaty of peace. At the date of the treaty of Ghent, December 24, 1814, the whole of the boundary line from the source of the river St. Croix to the most northwesternmost point of the Lake of the Woods still remained undscertained, and it was therefore agreed to provide for a final adjustment thereof. For this purpose the appointment of com- missioners was authorized by the fifth article of the treaty of Ghent, with power to ascertain and determine the northwest angle of Nova Scotia and the northwestern- most head of Connecticut River, in conformity with the provisions of the treaty of 1783, and to cause the boundary from the source of the river St. Croix to the river Iroquois or Cateraguy to be surveyed and marked according to the said provisions, etc. In the event of the commissioners differing, or both or either of them failing to act, the same article made provision for a reference to a friendly sovereign or state. Commissioners were appointed under this article in 1815-16, but although their ses- sions continued several years, they were unable to agree on any of the matters referred to them. Separate reports were accordingly made to both Governments of the two commissioners in 1822, stating the points on which they differed and the grounds upon which their respective opinions had been formed. The case having thus happened which made it necessary to refer the points of difference to a friendly sovereign or state, it was deemed expedient by the parties to regulate this reference by a formal arrangement. A convention for the purpose was therefore concluded on the 29th of September, 1827, and the two Governments subsequently agreed in the choice of His Majesty the King of the Netherlands as arbiter, who consented to act as such. The submission of the points of difference, three in number, was
1661 Messages and Papers of the Presidents accordingly made to that Sovereign, and his award, or rather written opiniog on the questions submitted to him, was rendered on the roth of January, 1831. On the 7th of December following the President communicated the award of the arbiter to the Senate of the United States for the advice and consent of that body as to its execu- tion, and at the same time intimated the willingness of the British Government to abide by it. The result was a determination on the part of the Senate not to con- sider the decision of His Netherland Majesty obligatory and a refusal to advise and consent to its execution. ' They, however, passed a resolution in June, 1832, advising the President to open a new negotiation with His Britannic Majesty’s Government for the'ascertainment of the boundary between the possessions of the two powers on the northeastern frontier of the United States according to the definitive treaty of peace. Of the negotiation subsequent to this event it is deemed proper to take a more particular notice. In July the result of the action of the Senate in relation to the award was com- municated to Mr. Bankhead, the British chargé d'affaires, and he was informed that the resolution had been adopted in the conviction that the sovereign arbiter, instead of deciding the questions submitted to him, had recommended a specified compro- mise of them. The Secretary of State at the same time expressed the desire of the President to enter into further negotiation in pursuance of the resolution of the Sen- axe, and proposed that the discussion should be carried on at Washington. He also said that if the plenipotentiaries of the two partis should fail in this new attempt to agree upon the line intended by the treaty of 1783 there would probably be less difficulty than before in fixing a convenient boundary, as measures were in progress to obtain from the State of Maine more extensive powers than were before possessed, with a view of overcoming the constitutional obstacles which had opposed themselves to such an arrangement; and he further intimated that the new negotiation would naturally embrace the important question of the navigation of the river St. John. In April, 1833, Sir Charles R. Vaughan, the British minister, addressed a note to the Department of State, in which, hopeless of finding out by a new negotiation an assumed line of boundary which so many attempts had been fruitlessly made to dis- - cover, he wished to ascertain, first, the principle of the plan of boundary which the American Government appeared to contemplate as likely to be more convenient to both parties than those hitherto discussed, and, secondly, whether any, and what, arrangement for avoiding the constitutional difficulty alluded to had yet been con- cluded with the State of Maine. Satisfactory answers on these points, he said, would enable the British Government to decide whether it would entertain the proposition, but His Majesty’s Government could not consent to embarrass the negotiation respecting the boundary by mixing up with it a discussion regarding the navigation of the St. John as an integral part of the same question or as necessarily connected with it. In reply to this note, Mr. Livingston, under date of the 30th of April, stated that the arrangement spoken of in his previous communication, by which the Govern- ment of the United States expected to be enabled to treat for a more convenient boundary, had not been effected, and that as the suggestion in regard to the naviga- tion of the St. John was introduced merely to form a part of the system of compen- gations in negotiating for such a boundary if that of the treaty should be abandoned, it woula not be insisted on. The proposition of the President for the appointment of a joint commission, with an umpire, to decide upon all points on which the two Governments disagree was then presented. It was accompanied by a suggestion that the controversy might be terminated by the application to it of the rule for surveying and laying down the boundaries of tracts and of countries designated by natural objects, the precise situ- ation of which is not known, viz, that the natural objects called for as terminating points should first be found, and that the lines should then be drawn to them from
Martin Van Buren 1662 the given points with the least possible departure from the course prescribed in the instrument describing the boundary. Two modes were suggested in which such commission might be constituted: First, that it should consist of commissioners to be chosen in equal numbers by the two parties, with an umpire selected by some friendly sovereign from among the most skillful men in Europe; or, secondly, that it should be entirely composed of such men so selected, to be attended in the survey and view of the country by agents appointed by the parties. This commission, it was after- wards proposed, should be restricted tq the simple question of determining the point designated by the treaty as the highlands which divide the waters that fall into the Atlantic from those which flow into the St. Lawrence; that these highlands should be sought for in a north or northwest direction from the source of the St. Croix, and that a straight line to be drawn from the monument at the head of that river to those highlands should be considered, so far as it extends, as a part of the boundary in | question. The commissioners were then to designate the course of the line along the highlands and to fix on the northwesternmost head of the Connecticut River. In a note of 31st May the British minister suggested that this perplexed and hitherto interminable question could only be set at rest by an abandonment of the defective description of boundary contained in the treaty, by the two Governments mutually agreeing upon a conventional line more convenient to both parties than those insisted upon by the commissioners under the fifth article of the treaty of Ghent, or that suggested by the King of the Netherlands. Mr. McLane remarked in reply (June 5) that the embarrassments in tracing the treaty boundary had arisen more from the principles assumed and from the manner of seeking for it than from any real defect in the description when properly under- stood; that in the present state of the business the suggestion of Sir Charles R. Vaughan would add to the existing difficulties growing out of a want of power in the General Government under the Constitution of the United States to dispose of territory belonging to either of the States of the Union without the consent of the State; that as a conventional line to the south of and confessedly variant from that of the treaty would deprive the State of Maine of a portion of the territory she claims, it was not probable that her consent to it would be given while there remained a rea- sonable prospect of discovering the line of the treaty of 1783, and that the President would not be authorized, after the recent proceedings in the Senate, to venture now to agree upon a conventional line without such consent, whilst the proposition sub- mitted in April afforded not only a fair prospect, but in his opinion the certain means, of ascertaining the boundary called for by the treaty of 1783 and of finally terminat- ing all the perplexities which have encompassed that subject. In February, 1834, Sir Charles R. Vaughan, after submitting certain observations intended to controvert the positions assumed by the United States on the subject of the constitutional difficulty by which the American Government was prevented from acquiescing in the arrangement recommended by the King of the Netherlands for the settlement of the boundary in the neighborhood of the St. John, asserted that the two Governments bound themselves by the convention of September, 1827, to sub- mit to an arbiter certain points of difference relative to the boundary between the American and British dominions; that the arbiter was called on to determine certain questions, and that if he has determined the greater part of the points submitted to him his decision on them ought not to be set aside merely because he declares that one remaining point can not be decided in conformity with the words of the treaty of 1783, and therefore recommends to the parties a compromise on that particular _point; that the main points referred to the arbiter were three in number; that upon the second and third of these he made a plain and positive decision; that upon the remaining point he has declared that it is impossible to find a spot or to trace a line which shall fulfill all the conditions required by the words of the treaty for the north- west angle of Nova Scotia and for the highlands along which the boundary from that
1663 Messages and Papers of the Presidents angle is to be drawn; yet that in the course of his reasoning, upon this point he has decided several questions connected with it upon which the two parties had enter- tained different views, viz: ‘First. The arbiter expresses his opinion that the term ‘highlands’ may properly be applied not only to a hilly and elevated country, but to a tract of land which, without being hilly, divides waters flowing in different directions, and consequently, according to this opinion, the highlands to be sought for are not necessarily a range of mountains, but rather the summit level of the country. “Second. The arbiter expresses his opinion that an inquiry as to what were the ancient boundaries of the North American Provinces can be of no use for the present purpose, because those boundaries were not maintained by the treaty of 1783 and had in truth never been distinctly ascertained and laid down. ‘Third. The arbiter declares that the northwest angle of Nova Scotia mentioned in the treaty of 1783 is not a point which was then known and ascertained; that it is not an angle which is created by the intersection of any lines of boundary at that time acknowledged as existing, but that it is an angle still to be found and to be created by the intersection of new lines, which are hereafter to be drawn in pursu- ance of the stipulations of the treaty; and further, that the nature of the country eastward of the said angle affords no argument for laying that angle down in one place rather than in another. ‘Fourth, He states that no just argument can be deduced for the settlement of this question from the exercise of the rights of sovereignty over the fief of Mada- waska and over the Madawaska settlement. . ‘Fifth. He declares that the highlands contemplated in the treaty should divide immediately, and not mediately, rivers flowing into the St. Lawrence and rivers flowing into the Atlantic, and that the word ‘divide’ requires contiguity of the things to be divided. “Sixth. He declares that rivers falling into the Bay of Chaleurs and the Bay of Fundy can not be considered according to the meaning of the treaty as rivers flow- ing into the Atlantic, and specifically that the rivers St. John and Restigouche can not be looked upon as answerable to the latter description. “Seventh. He declares that neither the line of boundary claimed by Great Britain nor that claimed by the United States can be adjudged as the true line without departing from the principles of equity and justice as between the two parties.”’ It was the opinion of His Majesty’s Government, Sir Charles alleged, that the decisions ofthe 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 recom- mended by the arbiter, it would be necessary to adopt these seven decisions as a groundwork for further proceedings; that the British Government, therefore, pre- viously 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 rec- ommended 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 com- ponent States of the Union, would be equally fatal to that suggested by Mr. Living- ston, since a line drawn from the head of the St. Croix to highlands found to the
Martin Van Buren 1664 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 con- sider any part of the opinion of the arbiter obligatory on either party. Those opin- ions, 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 deter- mining 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 recommenda- tions. 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 obli- gatory 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 sur- veyed 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 beconsidered by the United
1665 Messages and Papers of the Presidents States are but part of those on which the arbiter was equally explicit in the expres- sion 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 conven- tional arrangement between the two Governments; that the Government of the United States could not adopt this recommendation nor agree upon a new and con- ventional 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 pur- pose, 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 mes.ns 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 cer- tain 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 bound- ary 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 impracti- cable 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 pre- viously 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 toa 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
Martin Van Buren 1666 that a new survey might throw into the possession pf 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 there- fore 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 con- sideration. 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 com- plicated 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 Brit- ish 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 heen con- fined 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 ternis 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 implica- tion 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 sub- mission 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 over- looked; that the chief, if not only, difficulty arose from a supposed necessity of find- ing highlands corresponding with the treaty description in a due north line from the monumert, 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
1667 Messages and Papers of the Presidents 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 upcn the principle suggested was so simple that no observa- tions 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 t to their own judgment as to the locality of the highlands. Mr. McIane, 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 Presjdent’s propo- sition 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 suryey shall be selected and constity 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 Maj- esty’s Government that the American Government still declined to come to a sepa- rate 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 roth February last, he addressed himself exclu- sively 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 cf 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
Martin Van Buren 1668 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 proceed- ing 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, infeed, one preliminary question upon which it was obviously necessary the two Govern- ments 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 flow- ing from them, and those distinguishing rivers to be known from others by the situa- tion of their mouths; that with respect to the rivers flowing south into the Atlantic Ocean a difference of opinion existed between the twc 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 Gov- ernment 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 estab- lishment of any new commission of survey; tl at 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 tpon the operations of surveyors; and His Majesty’s Government, having once submited 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 Britanmic Majesty's min- ister, that a negotiation should be opened for the establishment of a conventiqnal 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
1669 Messages and Papers of the Presidents a of a new negotiation controlled by other aaeaallaiama than those to be drawn from that instrument only. The Secretary expressed the President’s unfeigned regret upon learning the deci- sion 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 vietvs 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 con- trary, 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 impor- tant 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 consid- ered 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 ag ree- ment 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 intimat- ing that he was authorized to confer with Sir Charles whenever it might suit nis 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
' Martin Van Buren 1670 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, con- tained 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 when- aver 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 Gov- ernment 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 exclu- sively by the General Government of the United States. Mr. Bankhead, the British chargé d'affaires, in 2 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 irom 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 udmit 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 empow- ered to Zecide 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 author- ity would be to submit it to a fresh arbitration, and that if His Majesty’s Govern- ment 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 3 previous understanding between the two Governments; that although neither shoufu ~N
1671 Messages and Papers of the Presidents be required to give up its own interpretation of the river question, yet “the commis- sioners 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 princi- ples and with a view to the respective interests and the convenience of the two par- ties. 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 there- fore 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 te 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 construc- tion only,’’ although repeated on various occasions-by Great Britain, was demonstra- bly 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. Bank- head’s note, but that in such a line the wishes and interests of Maine were to be con- sulted, 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.
Martin Van Buren 1672 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 prozosition 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 ite source to its mouth the boundary between the United States and His Majesty’s Prov- ince of New Brunswick was one to which the British Government, he was co.:vinced, would never agree. On the 5th March the Secretary expressed regret that his proposition to make the rivers St. John the boundary between Maine and New Brunswick would, in the opin- ion 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 con- sented to the modification of his previous proposition for the appointment of a com- - mission 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 communica- tion 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 waz 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 compro- mise; 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
1673 Messages and Papers of the Presidents 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. 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 under- stand upon what grounds any expectation could have been formed that such a pro- posal 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 commis- sion 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 north- west 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 expec- tation 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 Govern- ment 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 bound- ary in accordance with the letter of the treaty. Mr. Fox said that if the investi- gations 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 pos- sibly be removed, and the way be thus prepared for a satisfactory settlement of the
Martin Van Buren 1674 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 nec- essary that their agreement should be by a convention, and it would be obviously indis- pensable 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 effeeting 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 sug- gestion in his note of the roth 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 vio- lating the jurisdiction of a sovereign State and assuming to alienate a portion of the territory claimed by such State. In teply 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 indisputa- ble 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 supe- rior advantages of a river over a highland boundary, and that no difficulty was antici- pated 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 prop- osition 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, pre- sented advantages sufficient to counterbalance any loss of territory by either party that might accrue from its adoption; and it was also supposed that another recom- mendation 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 dis- tinctive difference between the American proposition for a commission and that proposition as subsequently modified by Great Britain was pointed out, and he was
1675 Messages and Papers of the Presidents informed that althongh the proposal originated with this Government, the modifica- tion was so fundamentally important that it entirely changed the nature of the propo- sition, 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 Gov- ernment 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 Govern- ment should be insisted on and its principles be adopted, it would then be neces- sary 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 accom- plish 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 nego- tiation for the establishment of a conventional line, and he conceives the present the proper time to seek it. I am therefore directed by the President to invite your excellency to adopt such measures as you may deem necessary to ascertain the sense of the State of Maine with respect to the expediency of attempting to establish a conventional line of boundary between that State and the British possessions by direct negotiation between the Governments of the United States and Great Britain, and whether the State of Maine will agree, and upon what conditions, if she elects to prescribe any, to abide by such settlement if the same be made. Should the State of Maine be of opinion that additional surveys and explorations might be useful either in leading to a satisfactory adjustment of the controversy according to the terms of the treaty or in enabling the parties to decide more understandingly upon the expediency of opening a negotiation for the establishment of a line that would suit their mutual convenience and be reconcilable to their conflicting interests, and desire the creation for that purpose of a commission upon the principles and with the limited powers
Martin Van Buren 1676 described in the letter of Mr. Fox, the President will without hesitation open a nego tiation with Great Britain for the accomplishment of that object. I have the honor to be, with high consideration, your excellency’s obedient servant, JOHN FORSYTH. WasHInoton, April 5, 1838 To the House of Representatives of the United States: I herewith transmit to the House of Representatives a report from the Secretary of State, with accompanying papers, in answer to their resolu: tion of the 21st ultimo. M. VAN BUREN DEPARTMENT OF STATE, : Washington, April 4, 1830 The PRESIDENT OF THE UNITED STATES: The Secretary of State, to whom has been referred the resolution of the House oa Representatives of the 21st ultimo, requesting the President, ‘if not incompatible with the public interests, to communicate to that House any information possessed by him respecting the capture and destruction of the steamboat Caroline at 6chlos- ser during the night of the 29th December last, and the murder of citizens of the United States on board, and all the particulars thereof not heretofore communicated, and especially to inform the House whether said capture was authorized, commanded, or Sanctioned or has been avowed by the British authorities or officers, or any of them, and also what steps have been taken by him to obtain satisfaction from the Government of Great Britain on account of said outrage, and to communicate to the House all correspondence or communications relative thereto which have passed between the Government of the United States and Great Britain, or any of the public authorities of either,’’ has the honor to lay before the President the accompanying documents, which contain all the information in the possession of this Department relative to the subject of the resolution; and to state, moreover, that instructions have been transmitted to the minister of the United States in Lon- don to make a full representation to Her Britannic Majesty’s Government of the facts connected with this lamentable occurrence, to remonstrate against the unwar- tantable course pursued on the occasion by the British troops from Canada, and to express‘ the expectation of this Government that such redress as the nature of the case obviously requires will be promptly given. Respectfully submitted. JOHN FORSYTH. Mr. Forsyth to Mr. Fox. DEPARTMENT OF STATE, Washington, January 5, 1838. Henry S. Fox, Esq., etc. " $rr: By the direction of the President of the United States, I have the honor to communicate to you a copy of the evidence furnished to this Department of au extraordinary outrage committed from Her Britannic Majesty’s Province of Upper Canada on the persons and property of citizens of the United States within the juris- diction of the State of New York. The destruction of the property and the assassi- nation of citizens of the United States on the soil of New York at the moment when, as is well known to you, the President was anxiously endeavoring to allay the excite. ment and earnestly seeking to prevent any unfortunate occurrence on the frontier of Canada have produced upon his mind the most painful emotions of surprise and regret. It will necessarily form the subject of a demand for redress upon Her
1677 Messages and Papers of the Presidents Majesty’s Government. This communication is made to you under the expectation that through your instrumentality an early explanation may be obtained from the authorities of Upper Canada of all the circumstances of the transaction, and that by your advice to those authorities such decisive precautions may be used as will ren- der the perpetration of similar acts hereafter impossible. Not doybting the dispo- sition of the government of Upper Canada to do its duty in punishing the aggressors and preventing future outrage, the President nevertheless has deemed it necessary to order a sufficient force on the frontier to repel any attempt of a like character and to make known to you that if it should occur he can not be answerable for the effects of the indignation of the neighboring people of the United States. I avail myself of this occasion, etc. JOHN FORSYTH. Mr. Forsyth to Mr. Fox. ‘ DEPARTMENT OF STATE, Hzwry S. Fox, Esq., ete. Washington, January 19, 1838. Str: With reference to my note of the 5th instant, communicating to you evidence of an extraordinary outrage committed from Her Britannic Majesty’s Province of Upper Canada on the persons and property of certain citizens of the United States at Schlosser, within the jurisdiction of the State of New York, on the night of the 29th ultimo, I have now the honor to transmit to you the copy of a letter* recently received from the attorney of the United States for the northern district of New York, dated the 8th of the current month, with transcripts of sundry depositions* which accompanied it, containing additional information in regard to that most disastrous occurrence. A letter from Mr. George W. Pratt of the roth of January, with inclo- sures relating to the same subject, is also sent. I avail myself of this occasion to renew to you the assurance of my distinguished consideration. JOHN FORSYTH. The PRESIDENT. RocuEsrEr, January 10, 1838. S1r: Colonel McNab, having avowed that the steamboat Caroline was destroyed by his orders, justifies himself by the plea, sustained by affidavits, that hostilities were commenced from the American shore. I inclose you the affidavits* of four respectable citizens of Rochester, who were present at the time, who contradict the assertions of Colonel McNab. I have the honor to be, your obedient servant, GEO. W. PRATT. Mr. Fox to Mr. Forsyth. Hon. Jonn Forsyva, etc. Wasuincton, February 6, 1838. Str: With reference to the letters which, by direction of the President, you addressed to me on the 5th and 19th ultimo, respecting the capture and destruction of the steamboat Caroline by a Canadian force on the American side of the Niagara River, within the jurisdiction of the State of New York, I have now the honor to communicate to you the copy of a letter upon that subject which I have received from Sir Francis Head, lieutenant-governor of the Province of Upper Canada, with divers reports and depositions annexed. The piratical character of the steamboat Caroline and the necessity of self-defense and self-preservation under which Her Majesty's subjects acted in destroying that vessel would seem to be sufficiently established. At the time when the event happened the ordinary laws of the United States were * Omitted.
Martin Van Buren 1678 not enforced within the frontier district of the State of New York. The authority of the law was overborne publicly by piratical violence. Through such violence Her Majesty’s subjects in Upper Canada had already severely suffered, and they were threatened with still further injury and outrage. This extraordinary state of things appears naturally and necessarily to have impelled them to consult their own security by pursuing and destroying the vessel of their piratical enemy wheresoever they might find her. I avail mayoelt of this occasion to renew to you the assurance of my high respect and consideration. HL. S. FOX. Toronto, Upper Canada, January 8, 7838. Gis Excellency Henry S. Fox, Her Majesty's Minister, Washington. Sm: I have the honor to inclose you the copy of a special message sent by His Excellency Governor Marcy to the legislature of the State of New York, in relation to a matter on which your excellency will desire the earliest and most authentic information. The message only reached this place yesterday, and I lose no time in. communicating with your excellency on the subject. The governor of the State of New York complains of the cutting out and burn- ing of the steamboat Caroline by order of Colonel McNab, commanding Her Maj- esty’s forces at Chippewa, in the Province of Upper Canada, and of the destruction of the lives of some American citizens who were on board of the boat at the time she was attacked. The act complained of was done under the following circumstances: In Upper Canada, which contains a population of about 450,000 souls, the most per- fect tranquillity prevailed up to the 4th day of December last, although in the adjoin- ing Province of Lower Canada many of the French Canadian inhabitants had been in open rebellion against the Government for about a month preceding. At no time since the treaty of peace with the United States in 1815 had Upper Canada been more undisturbed. The real causes of the insurrection in Lower Canada, namely, the national antipathy of the French inhabitants, did not in any degree apply in the upper Province, whose population, like the British and American inhabitants of Lower Canada, were wholly opposed to the revolt and anxious to render every service in their power in support of the Queen's authority. It had been reported to the Government some time before the 4th of December that in a remote portion of the home district a number of persons occasionally met and drilled with arms under leaders known to be disaffected, but it was not believed by the Government that anything more could be intended than to make a show of threatened revolt in order to create a diversion in favor of the rebels in Lower Canada. The feeling of loyalty throughout this Province was known to be so prevalent and decided that it was not thought unsafe to forbear, for the time at least, to take any notice of the proceedings of this party. On the night of the 4th December the inhabitants of the city of Toronto were alarmed by the intelligence that about 500 persons armed with rifles were approach- ing the city; that they had murdered a gentleman of great respectability in the highway, and had made several persons prisoners. The inhabitants rushed imme- diately to arms; there were no soldiers in the Province and no militia had been called out. The home district, from which this party of armed men came, contains 60,000 inhabitants; the city of Toronto 10,000. In a few hours a respectable force, although undisciplined, was collected and armed in self-defense, and awaited the threatened attack. It seems now to admit of no doubt that if they had at once advanced against the insurgents they would have met with no formidable resistance, but it was thought more prudent to wait until a sufficient force should be collected
1679 Messages and Papers of the Presidents to put the success of an attack beyond question. In the meantime people poured in from all quarters to oppose the insurgents, who obtained no increase of numbers, but, on the contrary, were deserted by many of their body in consequence of the acts of devastation and plunder into which their leader had forced them. On the 7th of December an overwhelming force of militia went against them and dispersed them without losing a man, taking many prisoners, who were instantly by my order released and suffered to depart to their homes. The rest, with their lead- ers, fled; some have since surrendered themselves to justice; many have been taken, and some have escaped from the Province. It was reported about this time that in the district of London a similar disposition to rise had been observed, and in consequence a militia force of about 400 men was sent into that district, where it was speedily joined by three times as many of the inhabitants of the district, who assembled voluntarily and came to their aid with the greatest alacrity. It was discovered that about 300 persons under Dr. Duncombe, an American by birth, were assembled with arms, but before the militia could reach them they dis- persed themselves and fled. Of these by far the greater came in immediately and submitted themselves to the Government, declaring that they had been misled and deceived, and praying for forgiveness. In about a week perfect tranquillity was restored, and from that moment not a man has been seen in arms against the Government in any part of the Province, with the exception of the hostile aggression upon Navy Island, which I shall presently notice; nor has there been the slightest resistance offered to the execution of legal process in a single instance. After the dispersion of the armed insurgents near Toronto Mr. McKenzie, their leader, escaped in disguise to the Niagara River and crossed over to Buffalo. Reports had been spread there and elsewhere along the American frontier that Toronto had been burnt and that the rebels were completely successful, but the falsehood of these absurd rumors was well known before McKenzie arrived on the American side. It was known also that the ridiculous attempt of 400 men to revolutionize a country containing nearly half a million inhabitants had been put down by the people instantly and decidedly without the loss of a man. Nevertheless, a number of American citizens in Buffalo and other towns on the frontier of the State of New York enlisted as soldiers, with the avowed object of invading Canada and establishing a provisional government. Public meetings were held to forward this design of invading a country with which the United States were at peace. Volunteers w:re called for, and arms, ammunition, and provisions were supplied by contributions openly made.. All this was in direct and flagrant violation of the express laws of the United States, as well as of the law of nations. The civil authority of Buffalo offered some slight shew of resistance to the move- ment, being urged tq interpose by many of the most respectable citizens. But no real impediment was offered, and on the 13th of December some hundreds of the citizens of the State of New York, as an armed body under the command of a Mr. Van Rensselaer, an American citizen, openly invaded and took possession of Navy Island, a part of Upper Canada, situate in the Niagara River. Not believing that such an outrage would really be committed, no force whatever was assembled at the time to counteract this hostile movement. In a very short time this lawless band obtained from some of the arsenals of the State of New York (clandestinely, as it is said) several pieces of artillery and other arms, which in broad daylight were openly transported to Navy Island without resistance from the American authorities. The people of Buffalo and the adjacent country continued to supply them with stores of various kinds, and additional men enlisted in their ranks, In a few days their force was variously stated from 500 to 1,500, of whom a small
Martin Van Buren 1680 proportion were rebels who had fled from Upper Canada. ‘They began to intrench themselves, and threatened that they would in a short time make a landing on the Canadian side of the Niagara River. To prevent this and to keep them in check a body of militia was hastily collected and stationed on the frontier, under the command of Colonel Cameron, assistant adjutant-general of militia, who was succeeded in this command by Colonel McNab, the speaker of the house of assembly, an officer whose humanity and discretion, as well as his activity, have been proved by his conduct in putting down the insurrec- tion in the London district and have been acknowledged in warm terms of gratitude by the misguided persons who had surrendered themselves into his hands. He received orders to act on the defensive only, and to be careful not to do any act which the American Government could justly complain of as a breach of neutrality. An official statement of the unfriendly proceedings at Buffalo was without delay (on the 13th December) made by me to his excellency the governor of the State of New York, to which no answer has been received. And after this open inva- sion of our territory, and when it became evident that nothing was effected at Buf- falo for preventing the violation of neutrality, a special messenger was sent to your excellency at Washington to urge your interposition in the matter. Sufficient time has not yet elapsed to admit of his return. Soon after his departure this band of outlaws on Navy Island, acting in defiance of the laws and Government of both coun- tries, opened a fire from several pieces of ordnance upon the Canadian shore, which in this part is thickly settled, the distance from the island being about 600 yards and within sight of the populous village of Chippewa. They put several balls (6-pound shot) through a house in which a party of militiamen were quartered and which is the dwelling house of Captain Usher, a respectable inhabitant. They killed a horse on which a man at the time was riding, but happily did no further mischief, though they fired also repeatedly with cannon and musketry upon our boats. They continued daily to render their position more formidable, receiving constant supplies of men and warlike stores from the State of New York, which were chiefly embarked at a landing place on the American main shore, called Fort Schlosser, pearly opposite to Navy Island. This place was once, I believe, a military position, before the conquest of Canada from the French, but there is now neither fort nor village there, but merely a single house occupied as a tavern, and a wharf in front of it, to which boats and vessels are moored. The tavern had been during these lawless proceedings a rendezvous for the band (who can not be called by any name more appropriate than pirates), and was in fact openly and notoriously resorted to as theit headquarters on the mainland, and is so to this time. On the 28th December positive information was given to Colonel McNab by persons from Buffalo that a small steamboat called the Caroline, of about 50 tons burthen, had been hired by the pirates, who called themselves “patriots,” and was to be employed in carrying down cannon and other stores and in transporting men and anything else that might be required between Fort Schlosser and Navy Island. He resolved if she came down and engaged in this service to take or destroy her. She did come down agreeably to the information he received. She transported a piece of artillery and other stores to the island, and made repeated passages during the day between the island and the main shore. In the night he sent a party of militia in boats, with orders to take or destroy her. They proceeded to execute the order. They found the Caroline mooted tothe wharf opposite to the inn at Fort Schlosser. In the inn there was a guard of armed men to protect her—part of the pirate force, or acting in their support. On her deck there was an armed party and a sentinel, who demanded the countersign. Thus identified as she was with the force which in defiance of the law of nations and every principle of natural justice had invaded Upper Canada and made war upon its unoffending inhabitants, she was boarded, and after a resistance iu which some des- perate wounds were inflicted upon the assailants she wascarried. If any peaceable
1681 Messages and Papers of the Presidents citizens of the United States perished in the conflict, it was and is unknown to the captors, and it was and is equally unknown to them whether any such were there. Before this vessel was thus taken not a gun had been fired by the force under the orders of Colonel McNab, even upon this gang of pirates, much less upon any peace- able citizen of the United States. It must therefore have been a consciousness of the guilty service she was engaged in that led those who were employing her to think an armed guard necessary for her defense. Peaceable citizens of the United States were not likely to be found in a vessel so employed at such a place and in such a juncture, and if they were there their presence, especially unknown as it was to the captors, could not prevent, in law or reason, this necessary act of self-defense. Fifteen days had elapsed since the invasion of Upper Canada by a force enlisted, armed, and equipped openly in the State of New York. The country where this outrage upon the law of nations was committed is populous. Buffalo also contains. 15,009 inhabitants. The public authorities, it is true, gave no countenance to those flagrant acts, but it did not prevent them or in the slightest degree obstruct them further than by issuing proclamations, which were disregarded. Perhaps they could not, but in either case the insult and injury to the inhabitants of Canada were the same and their right to defend themselves equally unquestionable. No wanton injury was committed by the party who gallantly effected this service. They loosed the vessel from the wharf, and finding they could not tow her against the rapid current of the Niagara, they abandoned the effort to secure her, set her on fire, and let her drift down the stream. The prisoners taken were a man who, it will be seen by the documents accompany- ing this dispatch, avowed himself to be a subject of Her Majesty, inhabiting Upper Canada, who had lately been traitorously in arms in that Province, and, having fled to the United States, was then on board for the purpose of going to the camp at Navy Island; and a boy, who, being born in Lower Canada, was probably residing in the United States, and who, being afraid to land from the boat in consequence of the firing kept up by the guard on the shore, was placed in one of the boats under Captain Drew and taken over to our side, from whence he was sent home the next day by the Falls ferry with money given him to bear his expenses. I send with this letter, first, a copy of my first communication to His Excellency Governor Marcy,* to which no reply has reached me; second, the official reports, correspondence, and militia general order respecting the destruction of the Caroline, with other documents;* third, the correspondence between Commissary-General Arcularius, of the State of New York, respecting the artillery belonging to the gov- ernment of the State of New York, which has been and is still used in making war upon this Province;* fourth, other correspondence arising out of the present state of things on the Niagara frontier;* fifth, the special message of Governor Marcy.* It will be seen from these documents that a high officer of the government of the State of New York has been sent by his excellency the governor for the express pur- pose of regaining possession of the artillery of that State which is now employed in hostile aggressions upon this portion of Her Majesty’s dominions, and that, being aided and favored, as he acknowledges, by the most friendly cooperation which the commanding officer of Her Majesty’s forces could give him, he has been success- fully defied by this army of American citizens, and has abandoned the object of his mission in despair. It can hardly fail also to be observed by your excellency that in the course of this uegotiation between Mr. Van Rensselaer and the commissary-general of the State of New York this individual, Mr. Van Rensselaer, has not hesitated to place himself within the immediate jurisdiction of the government whose laws he had violated and in direct personal communication with the officer of that government, and has, nevertheless, been allowed to return unmolested to continue in command of American citizens engaged in open hostilities against Great Britain. * Omitted.
INCIDENTS IN THE SEMINOLE WAR. For account of the war with the Seminole Indians, see Encyclopedic Index article under Seminole Wars. One of the panels in the preceding illustration shows the capture of Osceola, the leader of the Seminoles. Osceola, a half- breed, rallied the Indian forces under his leadership soon after the outbreik of the war in 1834, but it was not until December 28, 1835, that his strength was realized. On that day, a large band of Seminoles followed Osceola to the place shown on the other preceding panel, and there surprised and killed Major Dade and all of the force of 110 men under him. Osceola was finally captured by General Jessup, while the Indian was under the protection of a flag of truce, the United States commander justifying his action by the fact that Osceola himself had broken treaties on several occasions.
Martin Van Buren 1682 The exact position, then, of affairs on our frontier may be thus described : An army of American citizens, joined to a very few traitors from Upper Canada, and under the command of a subject of the United States, has been raised and equipped in the State of New York against the laws of the United States and the treaties now subsisting, and are using artillery plundered from the arsenals of the State of New York in carrying on this piratical warfare against a friendly country. The officers and Government of the United States and of the State of New York have attempted to arrest these proceedings and to control their citizens, but they have failed. Although this piratical assemblage are thus defying the civil authori- ties of both countries, Upper Canada alone is the object of their hostilities, The Government of the United States has failed to enforce its authority by any means, _ civil or military, and the single question (if it be a question) is whether Upper Canada was bound to refrain from necessary acts of self-defense against a people whom their own Government either could not or would not control. In perusing the message of His Excellency Governor Marcy to the legislature of the State of New York your excellency will probably feel some degree of surprise that after three weeks’ continued hostility carried on by the citizens of New York against the people of Upper Canada his excellency seems to have considered himself not called-upon to make this aggression the subject of remark for any other purpose than to complain of a solitary act of self-defense on the part of Her Majesty’s Prov- ince of Upper Canada, to which such unprovoked hostilities have unavoidably led. I have the honor to be, sir, your excellency’s most obedient, humble servant, F. B. HEAD. Mr. Forsyth to Mr. Fox. DEPARTMENT OF STATE, Henry S. Fox, Esq., etc. Washington, February 13, 1838. Sm: I have the honor to acknowledge the receipt of your note of the 6th instant, communicating a copy of a letter from Sir Francis Head, lieutenant-governor of the Province of Upper Canada, respecting the capture and destruction of the steamboat Caroline by a Canadian force on the American side of the Niagara River within the jurisdiction of the State of New York, together with the reports and depositions thereto annexed. The statement of the facts which these papers present is at variance with the information communicated to this Government respecting that transaction; but if is not intended to enter at present upon an examination of the details of the case, as steps have been taken to obtain the fullest evidence that can be had of the particu- lars of the outrage, upon the receipt of which it will be made the subject of a formal complaint to the British Government for redress. Even admitting that the docu- ments transmitted with your note contain a correct statement of the occurrence, they furnish no justification of the aggression committed upon the territory of the United States—an aggression which was the more unexpected as Sir Francis Head, in his speech at the opening of the parliament of Upper Canada, had expressed his confidence in the disposition of this Government to restrain its citizens from taking part in the conflict which was waging in that Province, and added that, having com- municated with the governor of the State of New York and yourself, he was then waiting for replies. It is not necessary to remind you that his expectations have been met by the adop- tion of measures on the part of the United States as prompt and vigorous as they have been successful in repressing every attempt of the inhabitants of the frontier, States to interfere unlawfully in that contest. The most serious obstacle thrown in the way of those measures was the burning of the Caroline, which, while it was of no service to Her Britannic Majesty’s cause in Canada, had the natural effect of increas- ing the excitement on the border, which this Government was endeavoring to allay. 1 avail myself of this occasion to renew to you the assurance of my distinguished consideration. JOHN FORSYTH.
1683 Messages and Papers of the Presidents His Excellency MARTIN VAN BUREN, Borraro, December 30, 1837. President of the Unitea States. Sir: Inclosed are copies of affidavits* which I have prepared in great haste, and which contain all that is material in relation to the gross and extraordinary trans- action to which they relate. Our whole frontier is in commotion, and I fear it will be difficult to restrain our citizens from avenging by a resort to arms this flagrant inva- sion of our territory. Everything that can be done will be by the public authorities to prevent so injudicious a movement. The respective sheriffs of Erie and Niagara have taken the responsibility of calling out the militia to guard the frontier and pre- vent any further depredations. I am, sir, with great consideration, your obedient servant, H. W. ROGERS, District Attorney for Evie County, and Acting for the United States. To the Senate: WasHINGTON, April, 1838. I transmit a communication from the Department of War, on the sub« ject of the treaty with the Stockbridge and Munsee Indians of September, 1836, which is now before the Senate. M. VAN BUREN. WASHINGTON, April 15, 1838. The PRESIDENT OF THE SENATE OF THE UNITED STATES. Sir: I transmit to you a report from the Secretary of the Navy, accom- panied with the papers relating to surveys, examinations and surveys of light-houses, sites for light-houses, and improvements in the light-house system, called for by the resolution of the Senate of the 8th of March last. , M. VAN BUREN. Hon. Jamxs K. Por, WaAsHINGTON, April 16, 1838. Speaker of the House of Representatives. S1r: I have the konor to transmit to you copies of the letters, docu- ments, and communications called for by a resolution of the House of Representatives of the 7th of December last, received from the Secretary of the Navy, to be annexed to his report of the 5th day of February last, in relation to the delay of the sailing of the exploring expedition.+ M. VAN BUREN. WASHINGTON, 4fril 78, 1838. Zo the Senate of the United States: I return the petition and papers of Econchatta Nico,t referred to me by a resolution of the Senate of February 7, 1837, and transmit a com- *Omitted. + South Sea surveying and exploring expedition. {A chief of the Apalachicola Indians, for indemnification for losses sustained by depredations ou his property by white persons.
Martin Van Buren ; 1684 munication and accompanying papers from the Acting Secretary of War, showing the failure of the attempt made, in conformity with the resolu- tion, to obtain indemnity for the petitioner by prosecuting the depreda- tors on his property, and aiso the causes of the failure. The papers are returned and the report and documents of the Acting Secretary of War submitted in order that Congress may devise such other mode of relief as may seem proper. M. VAN BUREN. WASHINGTON, April 23, 1838. To the House of Representatives of the United States: ‘ In compliance with the resolution of the House of Representatives of the 16th instant, relative to an attack on the steamboat Columdia in the Gulf of Mexico by a Mexican armed vessel, I transmit a report from the Secretary of State, to whom the resolution was referred. M. VAN BUREN. WasHINGTON, April 27, 1838. To the Senate: I transmit, for the consideration and action of the Senate, communi- cations from the Department of War, accompanying treaties with the Indians in the State of New York, with the St. Regis band, and with the Oneidas residing at Green Bay. M. VAN BUREN. WASHINGTON, April 26, 1838. To the House of Representatives of the United States: In partial compliance with the resolution of the House of Representa- tives of the 21st ultimo, calling for further information on the relations between the United States and the Mexican Republic, I transmit a report from the Secretary of State, to whom the resolution was referred. M. VAN BUREN. WasuHincton, April 27, 1838. To the Senate of the United States: I transmit to the Senate, for their consideration with a view to its rati- fication, a convention between the United States and the Republic of Texas for marking the boundary between them, signed in this city by the plenipotentiaries of the parties on the 25th instant. M. VAN BUREN. WASHINGTON, April 30, 7838. To the House of Representatives of the United States: I herewith transmit to the House of Representatives a report from the Secretary of State, in answer to that part of their resolution of the r9th ultimo requesting the communication of all correspondence with any
q 1685 Messages and Papers of the Presidents foreign government in regard to the title or occupation of the territory of the United States beyond the Rocky Mountains. M. VAN BUREN. DEPARTMENT OF STATE, Washington, April 25, 1838. The PRESIDENT OF THE UNITED STATES: The Secretary of State, to whom has been referred so much of the resolution of the House of Representatives dated the 19th ultimo as requests the President, if not incompatible with the public interest, to communicate to that body all correspond- ence had with any foreign government respecting the title or occupation of the terri- tory of the United States beyond the Rocky Mountains, has the honor to report to © the President that no recent communication on this subject has passed between this Government and any foreign power, and that copies of the correspondence growing out of previous discussions in which the question of title or occupation of this ter- ritory was involved have been heretofore communicated to the House and will be found among the documents printed by their order. Document No. 65 of the House ‘of Representatives, contained in the fourth volume of State Papers of the first ses- sion of the Nineteenth Congress, and that numbered 199, in the fifth volume of State Papers of the first session of the Twentieth Congress, are particularly referred to as immediately connected with this subject. Respectfully submitted. mo JOHN FORSYTH. Wasuincron, May 1, 1838. To the House of Representatives of the United States: - I transmit herewith a report, and acconipanying documents, from the Acting Secretary of War, which contains the information* required by the resolution of the 16th ultimo, respecting the officers of the Corps of Engineers, the works upon which they were engaged during the last year, and the other matters embraced in the resolution. M. VAN BUREN. ~ WasHINnGTon, May 2, 1838. To the House of Representatives of the United States: The report of the Secretary of State transmitted by me to the House of Representatives in compliance with their resolution of the’16th ultimo, respecting an attack alleged to have been made by a Mexican armed vessel upon an American steamboat, having stated that noinformation on the subject had at that time reached the Department, I now transmit another report from the same officer, communicating a copy of a note from the Mexican minister, with an accompanying document, in refer- ence to the act alluded to, which have been received at the Department since the date of the former report. M. VAN BUREN. * ist of officers of the Corps of Engineers and of the works upon which they were employed sturisfg the year 1837. :
Martin Van Buren ‘ 1686 Wasuinoton, May 7, 1838. Lo the Senate of the United States: I transmit to the Senate, for their consideration with a view to its rati- fication, a convention signed at Houston on the 11th ultimo by Alcée La Branche, chargé d'affaires of the United States, and R. A. Irion, secretary of state of the Republic of Texas, stipulating for the adjust- ment and satisfaction of claims of citizens of the United States on that Government in the cases of the brigs Pocket and Durango. ‘This con- vention having been concluded in anticipation of the receipt from the | Department of a formal power for that purpose, an extract from a . dispatch of Mr. La Branche to the Secretary of State explanatory of his motives for that act is also transmitted for the information of the Senate. M. VAN BUREN. Wasnrncron, May ro, 1838. To the Senate and House of Representatives: I submit to the consideration of Congress a statement prepared by the Secretary of the Treasury, by which it appears that the United States, with over twenty-eight millions in deposit with the States and over fif- teen millions due from individuals and banks, are, from the situation in which those funds are placed, in immediate danger of being rendered unable to discharge with good faith and promptitude the various pecun- iary obligations of the Government. ‘The occurrence of this result has for some time been apprehended, and efforts made to avert it. As the principal difficulty arises from a prohibition in the present law to reissue such Treasury notes as might be paid in before they fell due, and may be effectually obviated by giving the Treasury during the whole year the benefit of the full amount originally authorized, the remedy would seem to be obvious and easy. The serious embarrassments likely to arise from a longer continuance of the present state of things induces me respectfully to invite the earliest. attention of Congress to the subject which may be consistent with a due regard to other public interests. M. VAN BUREN. Wasurncton, May rr, 1838. To the House of Representatives of the United States: I herewith transmit to the House of Representatives reports from the Secretary of State and the Secretary of the Treasury, with accompany- ing papers, in answer to the resolution of the House of the 3oth ultimo, relating to the introduction of foreign paupers into the United States. M. VAN BUREN.
1687 Messages and Papers of the Presidents Wasuincton, May 19, 1838. To the Senate of the United States: I herewith transmit to the Senate the copy of a letter addressed to me on the 28th ultimo by the governor of Maine, inclosing several resolves of the legislature of that State, and claiming reimbursement from the General Government of certain moneys paid to Ebenezer S. Greely, John Baker, and others in compensation for losses and sufferings experi- enced by them respectively under circumstances more fully explained in his excellency’s letter. ‘ In the absence of any authority on the part of the Executive to satisfy these claims, they are now submitted to Congress for consideration; and I deem it proper at the same time, with reference to the observations contained in Governor Kent’s note above mentioned, to communicate to the Senate copies of other papers connected with the subject of the north- eastern boundary of the United States, which, with the documents already made public, will show the actual state of the negotiations with Great Britain on the general question. M. VAN BUREN. [The same message was sent to the House of Representatives. ] SraTE OF MAINE, EXECUTIVE DEPARTMENT, Augusta, April 28, 1838. His Excellency MARTIN VAN BUREN, : President of the United States. Sm: I have the honor to inclose to you a copy of a resolve* of the legislature of this State in favor of Ebenezer S. Greely, also a copy of a resolve* in favor of John Baker and others; and in compliance with the request of the legislature I ask of the Government of the United States a reimbursement of the several sums allowed thereby, which several sums have been paid by this State to the individuals named in the resolves. . The justice and propriety of granting this request, I can have no doubt, will be apparent to you and to Congress when the circumstances under which the allowances were made are called to mind. Mr. Greely, acting as agent under a law of this State authorizing and directing a census to be taken in unincorporated places, was forcibly seized and imprisoned for several months, and then, without trial, released. John Baker and his associates named in the other resolve suffered by imprison- ment and otherwise for acting under a law of this State incorporating the town of Madawaska in 1831. The State of Maine has acknowledged by these and other resolves its sense of obligation to remunerate in the first instance these sufferers in its cause and to satisfy as far as it is able their claims upon its justice. But the wrongs by which they suffered were committed by a foreign power with whom we are now at peace. The State of Maine has no power to make war or authorize reprisals, She can only look to the General Government to assume the payment as an act of justice to a member of the Union under the provisions of the Constitu- tion and to demand redress and remuneration from the authors of the wrong in the name of the United States. A minute recapitulation of the facts upon which these resolves are founded is deemed entirely unnecessary and superfluous, as they have heretofore been com- municated and are well known to the Executive and to Congress, * Omitted.
Martin Van Buren 1688 Maine has suffered too many repetitions of similar attempts to prevent her from enjoying her rightful possessions and enforcing her just claims to feel indifferent on the subject, and we look with confidence to the General Government for protection and support. The amount of money, although considerable, is of comparatively small importance when contrasted with the principles involved and the effect which must result from an immediate and ready assumption of the liability on the part of the United States. Such an act would be highly gratifying to the people of this State as evidence that their just claims and rights are fully recognized by the United States, and that the strong arm of the Union will be stretched out for their protec- tion in every lawful effort to maintain and enforce their claims, which they know and feel to be just and unimpeachable and which they are determined to maintain. I trust I shall be pardoned for earnestly urging immediate action on the subject. I had the honor to inclose to you, under date of the 28th of March last, a copy of my message to the legislature and of the resolves of the legislature of Maine in rela- tion to the northeastern boundary, which I have no doubt have received and will receive all the attention the importance of the subjects therein discussed aud acted ondemands. You will perceive that in accordance with your wishes I communicated the proposition in relation to a conventional line of boundary, with the letter of Mr. Forsyth addressed to the executive of Maine. The views and wishes and determi- nation of the executive and legislature, and I think I may safely add of the people, of Maine are fully and distinctly set forth in the documents referred to, communi- cated to you heretofore by me. The proposition was distinct and definite, and the answer is equally so, and I consider that it may be regarded as the fixed determine - tion of Maine to consent to no proposition on our part to vary the treaty line, but to stand by that line as a definite, a practicable, and a fair one until its impracticability is demonstrated. It is needless for me to recapitulate the reasons upon which this determination is founded. I refer you to the documents before alluded to for my own views on this topic, sanctioned fully by the legislature. The duty devolving upon me by your request I have endeavored to discharge in a spirit of profound respect for the constituted officers of the General Government, and with a-single eye to the interest and honor of the United States and of the State of Maine. The attitude assumed by Maine in relation to the survey of the line of the treaty of 1783 has doubtless attracted your attention. I feel it due to the State to say to you frankly and unequivocally that this position was taken deliberately and with a full consideration of all the circumstances of the case; but it was assumed in no spirit of defiance or resistance and with no design to embarrass the action of the General Government. Maine feels no desire to act alone or independently on this question. She knows and feels that it is a national question, and that it isthe right and duty of the General Government to move forward in effecting’ the object proposed. I feel fully warranted in saying that Maine does not intend by this expression of her determination to run the line in a certain contingency to waive in the least degree her well-founded claim upon the General Government to run, mark, and establish it. On the contrary, she will most reluctantly yield the hope she now so strongly feels that it is the intention of that Government to relieve her from the necessity of throwing herself upon her own resources to assert and defend her inost unquestionable right. The wish of this State is that the first act should be to run the line of the treaty of 1783 to ascertain the facts in relation to the topography of the country and the exact spot where the northwest angle of Nova Scotia may be found according to our construction of the treaty language, and to place suitable monuments along the whole line. Such a survey would not settle or determine any rights, but it would express and declare our views and'intentions. Such a survey is not a warlike or offensive movement, and can not justly give offense to the other party in the controversy. It is the unquestionable right of litigants in a court of justice to make explorations of land in dispute, and if either party declines a joint
1689 Messages and Papers of the Presidents survey it may be made ¢x parte, and surely the United States have never so far yielded the actual possession to Great Britain as to preclude the right on our part to ascertain for ourselves the absolute facts and to mark out the limits of our claim and our alleged right. This act Maine asks, and asks earnestly, the General Govern- ment to perform without delay. Such an assumption of the controversy on the part of the United States would’ be to Maine an assurancé that her rights were duly regarded, and would be steadily and perseveringly maintained. We want the name and the authority of the United States, and there can be no doubt that an act ema- nating from that source would be regarded by those interested on both sides as of more importance than any act of an individual State. So far, then, from any indif- ference on the part of Maine as to the action of the General Government, or any desire to be driven to assume the performance of the duty alluded to, she looks with intense anxiety and confident hope to be relieved from this position. She believes it is alike due to the honor of the United States and the rights of Maine that the General Government should go forward in the work, and that there is less to appre- hend in the result from such a course than any other. But Maine feels that the time for decisive action has come, that she can not be satisfied to have the claim to abso- lute and exclusive jurisdiction of a large part of her territory longer tolerated and acquiesced in. She knows that it rightfully belongs to her jurisdiction, that it is hers by a clear, perfect, and honest title—as clear, as perfect, and rightful as her title to any portion of the State—and she can not consent to have this title impaired or weakened by bold encroachments and unscrupulous demands. She can not consent that a title transmitted by the fathers of the Revolution shall be destroyed or defeated by acquiescence in the adverse occupation of a foreign state, and that what was once fairly yielded shall be reclaimed in utter defiaace of a solemn deed of cession. I am confident I am not mistaken in stating that the legislature of Maine considered the question as fairly and plainly before the National Government, and that if the present session of Congress should close with a denial or postponement of the pro- posed survey and no commission should be created by the Executive, as contem- plated ,in the resolution referred to, we should have a right and be bound to regard such a delay or refusal as evidence of an indisposition on the part of the General Government to accede to our expressed views and wishes, and a denial of justice, and that Maine in that event owed it to herself to cause the survey to be made under her own authority. The duty of the executive of Maine is plainly pointed out and made imperative and absolute by the resolves of the legislature, and I certainly can not hesitate, so far as I have the means and power, to execute their declared will. The people of Maine, sir, are not desirous of conflict or war. Both in their habits and their principles they love and wish for peace and quiet within their borders. They are not ambitious to win laurels or to acquire military glory by waging war with their neighbors, and least of all are they desirous of a border warfare, which may be the means of sacrificing human life and engendering ill will and bad pas- sions, without bringing the controversy to a conclusion. They are scattered over our thousand hills, engaged in their quiet and peaceful labors, and it is the first wish of their hearts to live peaceably with all men and all nations. They have no anxiety to extend our limits or to gain territory by conquest, but there is a firm and deter- mined spirit in this people which can not brook insult and will not submit to inten- tional injury. ‘‘They know their rights, and knowing dare maintain them”’ with calm determination and deliberate purpose, and they appeal with unshrinking con- fidence to their sister States and to the Government which binds them together for effective support in this their purpose. The crisis, as we believe, demands firm and decided language and the expression of a determined design. Maine has never refused to acquiesce in any fair and honor- able mode of fixing the line according to the treaty of 1783. 1 have no doubt (but upon this point I speak according to my individual belief) that the mode proposed
Martin Van Buren 1690 by Great Britain of establishing the treaty line upon the face of the earth by a com- mission composed of impartial and scientific men, to be selected by a friendly power, would be satisfactory and acquiesced in by this State, but that we should neither ask nor agree that any preliminary points should be yielded by either party. We should " only ask that the treaty should be placed in their hands with directions to ascertain and run and fix the line according to its plain language and obvious meaning. Maine can never consent, as I apprehend, to yield the main points of the case and then refer it to enable the judges to divide the subject-matter of the controversy. We feel that we now stand on the high vantage ground of truth and justice, and that it can not be that any nation professing to act on the principles of right and aquity can stand up before the civilized world and contest with unyielding pertinac- ity our claim. We have too much respect for the nation from which we descended to believe that she will sully her reputation by such persevering resistance. Iam conscious that the language and style of this communication are unusual and probably undiplomatic; that there is more of the fervor of feeling and the plain lan- guage of direct appeal than is usual in such papers; but it is a subject of such yast importance to the State whose interests have been in part intrusted to me and whose organ I am that I can not speak in measured terms or indefinite language. On this subject we have no ulterior views and no concealed objects. Our plans and our policy are open and exposed to the view of all men. Maine has nothing in either to conceal or disguise. She plainly and distinctly asks for specific and definite action. In performing what I conceive to be my duty I have been actuated by entire respect toward the General Government and by the single desire to explain and enforce as well as I was able our wishes and our rights. I can only add that we trust the General Government will assume the performance of the act specified in the resolution and relieve Maine from the necessity of independent action. With great respect, I have the honor to be, your most obedient servant, EDWARD KENT. DEPARTMENT OF STraTH, . Washington, April 27, 1838. Henry S. Fox, Esq., etc.: The undersigned, Secretary of State of the United States, has the honor, by the directions of the President, to communicate to Mr. Fox, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary, the result of the application of the General Government to the State of Maine on th¢ subject of the northeastern boundary line and the resolution which the President has formed upon a careful consideration thereof. By the accompanying papers,* received from the executive of Maine, Mr. Fox will perceive that Maine declines to give a consent to the nego- tiation for a conventional boundary, is disinclined to the reference of the points in dispute to a new arbitration, but is yet firmly persuaded that the line described in the treaty of 1783 can be found and traced whenever the Governments of the United States and Great Britain shall proceed to make the requisite investigations with a predisposition to effect that very desirable object. Confidently relying, as the President does, upon the assurances frequently repeated by the British Govern- ment of the earnest desire to reach that result if it is practicable, he has instructed the undersigned to announce to Mr. Fox the willingness of this Government to enter into an arrangement with Great Britain for the establishment of a joint com- mission of survey and exploration upon the basis of the original American propo- sition and the modifications offered by Her Majesty’s Government. The Secretary of State is therefore authorized to invite Mr. Fox to a confer- ence upon the subject at as early a day as his convenience will permit, and the SOmitted.
1691 Messages and Papers of the Presidents undersigned will be immediately furnished with a requisite full power by the Prest- dent to conclude a convention embracing that object if Her Majesty's minister is duly empowered to proceed to the negotiation of it on the part of Great Britain. The undersigned avails himself of this occasion to renew to Mr. Fox the expression of his distinguished consideration. JOHN FORSYTH. Wasuincton, May 7, 1838. Hon. Jonn Forsyvrg, etc. Srr: I have the honor to acknowledge the receipt of your official note of the 27th ultimo, in which you inclose to me a communication received by the Federal Gov- ernment from the executive of Maine upon the subject of the northeastern boundary line, and in which you inform me that the President is willing to enter into an arrangement with Her Majesty’s Government for the establishment of a joint com- mission of survey and exploration upon the basis of the original American proposi- ticn and of the modifications offered by Her Majesty’s Government, as communicated to you in my note of the roth of January last, and you invite me to a conference for the purpose of negotiating a convention that shall embrace the above object if I am duly empowered by my Government to proceed to such negotiation. I have the honor to state'to you in reply that my actual instructions were fulfilled by the delivery of the communication which I addressed to you on the Ioth of Jan- . uary, and that I am not at present provided with full powers for negotiating the pro- posed convention. I will forthwith, however, transmit to Her Majesty’s Government the note which I have had the honor to receive from you in order that such fresh instructions may be furnished to me or such other steps taken as the present situa- tion of the question may appear to Her Majesty’s Government to require. I avail myself of this occasion to renew to you the assurance of my high respect and consideration. H. S. FOX. DEPARTMENT OF STATE, Washington, May 8, 1838. His Excellency Epwarp KENT, Governor of Maine. Sr: I have the honor to acknowledge the receipt on the 22d ultimo of the com- munication addressed to this Department by your excellency on the 28th of March last, transmitting a printed eopy of your message of the 14th of the same month to the legislature of Maine, together with certain resolves passed by that body, in rela- tion to the northeastern boundary of the State. Although the answer thus given to the application made to you, by direction of the President, under date of the 1st of March last, to ascertain the sense of the State of Maine in regard to a conventional line of boundary may be regarded as conclusive, I still deem it proper, with reference to your excellency’s message, to mark a mis- conception which appears to have existed on your part when communicating to the legislature the letter and documents received from this Department. This is done with the greater freedom since the frank and liberal manner in which your excellency invited the attention of that body to the subject is highly appreciated by the Presi- dent. The question therein presented for consideration was not, as your excellency supposed, whether the State of Maine should ‘‘take the lead in abandoning the treaty and volunteer propositions for a conventional line,” but simply whether the govern- ment of Maine would consent that the General Government should entertain a direct negotiation with the British Government for a conventional line of boundary on the northeastern frontier of the United States. Had that consent been given it would have been reasonable to expect the proposition of a line from Great Britain, as it wae
Martin Van Buren 1692 that power which particularly desired the resort to that mode of settling the con- troversy. It was also the intention of the President so to arrange the negotiation that the approbation of Maine to the boundary line agreed upon should have been secured. It was with this view that in the application to the State of Maine for ita assent to a negotiation for a conventional line express reference was made to such con- ditions as she might think proper to prescribe. To all such as were, in the opinion of the President, required by a proper regard for the security of Maine and consistent with the Constitution he would have yielded a ready assent. Of that character was he disposed to regard a condition that in a negotiation for the final establishment of a new line, with power on the part of the negotiators to stipulate for the cession or exchange of territory as the interests and convenience of the parties might be found to require, the State of Maine should be represented by commissioners of her own eelection and that their previous asserit should be requisite to make any treaty con- taining such stipulation binding upon her. These suggestions are not now made as matter of complaint at the decision which the State of Maine has come to on a matter in which she was at perfect liberty to pursue the course she has adopted, but in justice to the views of the President in making the application. I am instructed to announce to your excellency that by direction of the President, upon due consideration of the result of the late application of the General Govern- ment to the State of Maine on the subject of the northeastern boundary and in accord- ance with the expressed wishes of her legislature, I have informed Mr. Fox of the willingness of this Government to enter into an arrangement with that of Great Britain for the establishment of a joint commission of survey and exploration upon the basis of the original American proposition and the modifications offered by Her Majesty’s Government, and to apprise you that Mr. Fox, being at present unprovided with full powers for negotiating the proposed convention, has transmitted my com- munication to his Government in order that such fresh instructions may be furnished to him or such other steps taken as may be deemed expedient on its part. I have the honor to be, with great respect, your excellency’s obedient servant, JOHN FORSYTH. Wasaincron, May 21, 1838. To the Senate and House of Representatives of the United Siates: The accompanying copy of a communication addressed by the Secretary of War to the Cherokee delegation is submitted to Congress in order that such measures may be adopted as are required to carry into effect the benevolent intentions of the Government toward the Cherokee Nation, and which it is hoped will induce them to remove peaceably and con- tentedly to their new homes in the West. M. VAN BUREN. Wasuincton, May 24, 1838. To the House of Representatives of the United States: I herewith submit a report from the Secretary of the Treasury, explana- tory of the manner in which extracts from certain newspapers relating to the introduction of foreign paupers into this country, and the steps taken to prevent it, became connected with his communication to me on
1693 Messages and Papers of the Presidents that subject, accompanying my message of the r1th instant. Sensible that those extracts are of a character which would, if attention had been directed to them, have prevented their transmission to the House, I request permission to withdraw them. \ M. VAN BUREN. Wasuincron, May 30, 1838. To the House of Representatives of the United States: I herewith transmit to the House of Representatives a report from the Secretary of State, in answer to their resolution of the 28th instant, rela- tive to the claim * in the case of the ship A/ary and cargo, of Baltimore. ° M. VAN BUREN. WASHINGTON, May 31, 1838. To the House of Representatives of the United States: In compliance with the resolution of the House of Representatives of the 28th instant, regarding the annexation of the Republic of Texas to the United States, I transmit a report from the Secretary of State, to whom the resolution was referred. M. VAN BUREN. WasHINGTON, June 1, 1838. To the Senate of the United States: Negotiations have been opened with the Osage and Delaware Indians, in compliance with the resolution of the Senate of the r9th of January last, for the relinquishment of certain school lands secured to them by treaty. ‘These relinquishmerts have been obtained on the terms author- ized by the resolution, and copies of them are herewith transmitted for the information of the Senate. M. VAN BUREN. WASHINGTON, June 4, 1838. To the House of Representatives of the United States: I transmit herewith to the House of Representatives a report from the Secretary of State, with accompanying papers, relating to the claim of the orphan children of Peter Shackerly,f in answer to their resolution of the 28th ultimo. M. VAN BUREN. * Against the Government of Holland. {Killed on board of the United States ship Chescpecke when attacked by the British ship of war Leoperd, June 22, 1807,
Martin Van Buren 1694 WASHINGTON, June 6, 1838. Zo the House of Representatives of the United States: In compliance with the resolution of the 4th instant, calling for any communication received from the governors of the States of Georgia, North Carolina, Tennessee, and Alabama in reference to the proposed modification of the Cherokee treaty of 1835, I herewith inclose a report of the Secretary of War, accompanied by a copy of a letter addressed by him to the governor of Georgia and of his reply thereto. As stated by the Secretary, no communication on that subject has been received from either of the other executives mentioned. M. VAN BUREN. WASHINGTON, June 7, 18378. To the House of Representatives of the United States: I transmit to the House of Representatives an account against the United States, presented by Heman Cady, of Plattsburg, in the State of New York, for services alleged to have been rendered as deputy marshal for the northern district of New York from the 2oth December, 1837, to the oth February, 1838, by direction of the attorney and marshal of the United States for that district, in endeavoring to prevent the arming and enlisting of men for the invasion of Canada. I also transmit cer- tain documents which were exhibited in support of the said account. I recommend to the consideration of Congress the expediency of an appro- priation for the payment of this claim and of some general provision for the liquidation and payment of others which may be expected to be presented hereafter for services of a similar character rendered before and after the passage of the act of the zoth March last, for preserving the neutrality of the United States on the northern frontier, which act imposes important duties upon the marshals and other civil officers, but omits to prowide for their remuneration or for the reimbursement of their expenses. M. VAN BUREN. To the Senate of the United States: WASHINGTON, June 7, 1838. Having received satisfactory assurances from the Government of Ecua- dor of its desire to negotiate a treaty of commerce on the most liberal principles in place of the expired treaty made with the Republic of Colombia, heretofore regulating our intercourse with Ecuador, it is my design to give the requisite authority for that purpose to the chargé d’affaires of the United States about to be appointed for Peru, with instructions to stop in Ecuador on his way to Lima as the agent of the United States to accomplish that object. The only additional charges to be incurred will be the expense of his journey from Panama to Quito, and from thence to the place of embarkation for Lima, to be paid out of the foreign-intercourse fund. I make this communication to the Senate that