[THE disputed question of the northeastern boundary of the
United States, between the state of Maine and the British
provinces, had been referred, in pursuance of an article of the
treaty of Ghent, to the king of the Netherlands, for his opinion
as to the true boundary line. That monarch having made his award,
recommending the River St. John as the proper boundary line,
(with some variations;) president Jackson communicated the
decision to the senate, asking their advice thereon, as part of
the treaty-making power. The subject being under discussion, (in
secret session,) Mr. Clay made the following remarks, in which
he shows that the advice asked of the senate was premature on
the part of the president, with whom the responsibility should
rest, until a treaty respecting the boundary should be concluded.
This view of the matter was sustained by the subsequent course
of the government, which resulted in the final settlement of
this boundary question, concluded in 1842, by lord Ashburton and
Mr. Webster, secretary of state, and afterwards confirmed by the
senate.]
INTENDING to express, in a few words, my sentiments on this subject,
I have thought I might as well embrace this occasion to do it. The
president has called upon the senate for its advice, as to the award
of the king of the Netherlands, respecting the northeastern boundary
of the United States. This call upon the senate is made, not in its
legislative character, but as a component part of the treaty-making
power. If the senate, therefore, should give any advice on the matter,
it must act in its executive capacity, and according to those rules
which govern it when so acting. Among these, is that which requires
the concurrence of two thirds of the senators present.
The language of the constitution, taken literally, would perhaps
require a participation of the senate in the original formation of all
treaties. The words are, ‘he, (the president,) shall have power, by and
with the advice and consent of the senate, to _make_ treaties; provided
two thirds of the senators present concur.’ In the early stages of his
administration, general Washington endeavored to execute this part of
the constitution according to its literal interpretation; but he soon
found it impracticable, and abandoned it. The difficulty of consulting
so large a body as to the instructions to be given to a foreign
minister; the variety of propositions which may be interchanged in
the progress of a negotiation, and the inconvenience of a perpetual
recurrence to the senate for its opinion upon each of them, besides
other considerations, rendered it altogether inexpedient to take
the advice and consent of the senate previously to the conclusion of
treaties. When concluded, president Washington thought the purport
of the constitution would be satisfied by submitting them to the
senate; as they could not be said to be _made_, in the language of the
constitution, until the senate gave its constitutional concurrence to
their becoming obligatory national compacts.
Accordingly, from an early period, in the first term of his
administration, down to the present time, the settled and uniform
practice of the executive government has been, to open negotiations
with foreign powers, and to conclude such treaties as the president
conceives the interests of this country demand. When so concluded,
they are submitted to the senate for its constitutional advice and
consent. And the extent of any agency which the senate exercises, in
the formation of a treaty, is limited to proposing, as was done in the
treaty of Mr. Jay, in 1794, amendments to the treaty. These become the
subject of future negotiation.
To this established practice of the government, the present
administration has hitherto, itself, conformed. And I presume it is
not intended to change it, and to revive the impracticable course which
general Washington was compelled to abandon, from experience.
What, then, are the circumstances of the case which the president
has brought here for the consideration of the senate? In virtue of
several treaties between the United States and Great Britain, on all
of which treaties the senate had regularly acted and given its advice
and consent, the disputed northeastern boundary was submitted to the
decision of the king of the Netherlands, as the arbitrator between
the two contracting parties, to decide the controversy. The king has
pronounced his judgment, and communicated his award to each of the
parties. Various questions have been started as to the validity of this
instrument. Such as, whether it was intended as a decision binding the
parties; whether it does not transcend the authority vested in the king,
by the terms of the submission; whether it can be regarded as any thing
more than the advice or recommendation of the king as to a suitable
boundary, which either party is at liberty to adopt or not, at his
discretion.
Whatever may be the real character of this royal act, no treaty, in
consequence of it, has been concluded between the United States and
Great Britain, as far as the senate is advised. It stands upon its
own isolated ground. The president has asked the senate to advise him
whether he shall sanction the award, and the report of the committee
of foreign relations, now before us, recommends that the government of
Great Britain be notified of the acquiescence in it by the government
of the United States.
Now, Mr. President, it seems to me, that, in the present state of
the transaction, there is nothing brought by the president to our
consideration, on which the senate, as a part of the treaty-making or
executive power, can constitutionally act. There is no treaty presented
to us for our advice and consent, not even a negotiation proposed, nor,
in short, any basis whatever for the action of the senate. If the award
of the king of the Netherlands be binding, it derives its validity from
the consent of the parties referring the question to him, and from his
having decided the case, in conformity with the terms of the submission.
If he has not decided it, or if in deciding it he has transcended
the terms of the submission, it is not binding and obligatory. The
president being the only constitutional organ of the people of the
United States, in all communications with foreign powers, and moreover
charged with the execution of the laws and treaties of the United
States, is bound to notify the British government what are the
executive views in relation to the award. If he tells that government
that this does not hold itself bound by the award, a negotiation would
probably take place between the parties. If, on the contrary, the
president notifies the British government that the United States
are bound by the award, he would have to come to congress for its
_legislative_ aid in carrying into effect the award. And should he so
come, the question of the validity of the award would be as open to
the examination of congress as it had been to the president. So, if
any negotiation which may be opened with Great Britain, in relation
to the award, should terminate in the conclusion of a treaty, the
president would be bound to submit that treaty to the senate for its
constitutional advice and consent. The president not having applied to
congress for any act of legislation, and having submitted no treaty or
national compact, in any form, to this body, I think there is nothing
before us on which we can constitutionally act; and that any advice
which, under these circumstances, we might offer to the president,
would have no warrant or authority in the constitution of the United
States. I cannot, therefore, consent to vote for the resolution
reported by the committee of foreign relations, or to concur in the
adoption of any other resolution which would imply the right of the
senate to express any opinion on the matter in its present state and
condition.
Whilst this is my deliberate judgment, I have no hesitation to offer
to the president, if he would attach any consequence to them, my
views and opinions, as a private citizen, on the whole matter of the
northeastern boundary. At Ghent, Great Britain did not assert any right
to the territory to which she subsequently set up a claim. She sought
there to obtain by negotiation, and exchange of territory with the
United States, a passage within her own jurisdiction from Nova Scotia
and New Brunswick to Quebec. The British commissioners were told by
the American, on that occasion, that they had no power to cede away
or exchange any part of the territory of Massachusetts, which then
included Maine. As there were many parts of the long line of boundary
between the United States and Great Britain unsettled and unmarked, it
became necessary to have it correctly ascertained and defined. For this
purpose several boards of commissioners were provided for by the treaty
of Ghent, in the same manner as a similar board had been created by a
previous treaty. Most of these boards have amicably and satisfactorily
settled the questions respectively submitted to them. That to which was
referred the boundary now in dispute could not agree. Before this board,
Great Britain brought forward and claimed as her right, that which she
had sought to obtain by negotiation only, at the conferences of Ghent.
And the perseverance with which she has prosecuted her pretensions, and
the apparent success with which they have been so far finally crowned,
demonstrate that there never need be despair in any cause, however bad.
During my service in an executive department, it became my duty to
examine into this claim asserted by Great Britain; and the result was
a firm persuasion and a strong conviction that it was unfounded, and
that the right to the disputed territory was in the state of Maine. It
is true that, in the treaty of peace of 1783, owing to the imperfect
knowledge possessed of the country through which the boundary runs,
there is some defective description, but the intention of the parties
I think is clear, and according to that intention the right is with
Maine, and not in Great Britain. It is altogether unnecessary, upon
this occasion, to proceed to state all the grounds and considerations
which brought my mind to that conclusion. By doing so, I should be
trespassing upon the senate too much.
The commissioners not having been able to settle the question,
the _casus fæderis_, provided for in former treaties, arose, and
it became necessary to submit the question to an arbiter. The king
of the Netherlands was selected for that purpose, and we all know
the subsequent events. The statements, arguments, and papers of the
parties, were all prepared within the two countries respectively,
and transmitted to Holland, where they were submitted to the king. In
consenting to refer the question, the late administration was impelled
by the duty of respecting the national faith, as pledged in solemn
treaties. And although the king of the Netherlands, was not the first
choice of either party, high confidence was reposed in his independence,
and in his ability, and integrity, by the late president of the United
States.
With respect to the conduct of the arbitration, on the part of
our government, there are some circumstances I think deeply to be
regretted. The plan adopted by the late administration was to have
retained Mr. Hughes at the Hague, elevated him to the rank of minister
plenipotentiary, and send out Mr. Preble as a public agent to be
associated with him. I scarcely know any man so well qualified for
such a service as Mr. Hughes. He had the benefit of much diplomatic
experience, and he had been very successful in various negotiations
which he had conducted. Commencing his career as secretary of the
commission at Ghent, he subsequently had creditably represented his
government at Stockholm, and at St. Petersburg, and at Copenhagen,
on temporary missions; and he had been some time at the court of the
Netherlands. Wherever he had been, he uniformly made good impressions,
and conciliated the esteem and friendship of all whose acquaintance
he formed. He was well versed in the language of the court of the
Hague, and well acquainted with all the persons having access to,
or surrounding the king. Of pleasing and winning manners, a general
favorite, he was exactly such a person as was well fitted for the
service. The rank of minister plenipotentiary was necessary to entitle
him to approach the person of the king, according to established usage.
It was a point of more importance that this government should have
had such a representative at Holland, as the British government was
there represented by an accomplished ambassador, (sir Charles Bagot,)
well known here. Mr. Hughes, intimately acquainted with the corps
diplomatique, with all the avenues of access to the king, and with
all persons likely to influence the mind or judgment of the monarch or
his ministers, would have been able to discover and avert the exercise
of any undue influence, if any should be brought to bear upon the
government of the Netherlands, in this delicate transaction.
It was among the early acts of this administration, to overturn the
plan which had been thus resolved on by its predecessors, and, in place
of Mr. Hughes, to send out Mr. Preble, in the sole charge of conducting
a difficult arbitration. I have had only a limited acquaintance with
this gentleman; but he was destitute of all diplomatic experience,
had never been in the councils of the general government, and I
understand could not either speak or write the language of the court
to which he was sent, and where he was a total stranger. He was
indeed a respectable lawyer in his own state, but of what avail would
professional eminence be, where tact, insinuating manners, and thorough
acquaintance with the persons of the court, were indispensable?
The result of an arbitration conducted under such auspices was to
be feared. During its progress, and before the king’s decision, he
was stripped, by the revolution in Belgium, of the better half of
his dominions. Had he been monarch of Holland alone, I think I hazard
nothing in saying, that, notwithstanding the confidence which Mr. Adams
reposed in his personal character, he would not have been selected,
with the concurrence of the late administration, as the sovereign
arbiter. It was to an independent sovereign, one the extent of whose
power and dominions placed him at the head of the second-rate states of
the continent of Europe, that the controversy was submitted. It was not
to the king of Holland, but to the king of Holland and Belgium, that
the question was referred. It was to a monarch supposed to be unbiased,
powerful, and independent, that the question was referred, and not to a
sovereign, who, whilst he was arbitrating between Great Britain and the
United States as to the territory of Maine, by the uncontrollable force
of events found one half of his own dominions the subject of British
arbitration or decision, in conjunction with the other allied powers.
By the loss of Belgium, the political character of the king was
entirely changed, his identity altered, and he ceased to be that
monarch, whose friendly arbitration had been solicited. Mr. Preble
saw the matter in its true light, and expected to have been notified
by the minister of foreign affairs of the king’s declining to proceed
in the arbitration. But he said nothing, and did nothing, to produce
that result. Had Mr. Hughes been there, he would, by a suggestion or
a hint, not at all offensive, (such as, whether the critical condition
of his own domestic affairs did not afford sufficient occupation for
his majesty, without troubling himself with the concerns of foreign
governments, in which his own subjects had no interest,) have prevailed
on the king to give up the papers; or, at least, to suspend proceeding
in the arbitration until he could receive fresh instructions from his
own government, adapted to the great event which had happened.
But nothing was done at the Hague or at Washington to arrest or suspend
the progress of the arbitration. We have neither seen nor heard of any
instructions from our secretary of state, founded on the event just
mentioned. A senator (now in my eye) informed me, that he had conversed
with the late secretary of state about the revolt of Belgium, and
asked him, if it would not put a stop to the arbitration. To which the
secretary answered, that he supposed of course it would; and yet, as
far as we know, he gave no instruction whatever in relation to that
event!
Under all these circumstances, our surprise at the issue of the
arbitration ought to be less than it otherwise would have been. If
the king of the Netherlands had definitively decided the questions
actually submitted to him, in consequence of the silent acquiescence
of our government in the progress of the arbitration, the honor and
faith of the nation might have bound us to submit to the decision,
however unjust we deem it. But, Mr. President, I cannot concur with the
committee of foreign relations, in considering the paper communicated
by the king of Holland to the two governments as containing a decision.
It seems to me to express only the opinion of that monarch, as to
what he thinks might be a suitable boundary, and to operate as a
recommendation to the parties to adopt it; but leaving them, at the
same time, at full liberty to adopt it or not, at their discretion. So
far from being a decision, the king professes his inability to _decide_
the question submitted to him, for reasons which he states, and he does
not decide it, according to the terms of the submission.
Nor can I concur with that committee in believing, that we shall be in
danger of incurring the reproaches of the world for not submitting to
such an award, if award it can be called. I am quite sure, that the
chairman of the committee of foreign affairs, or the present secretary
of state, would be fully competent to make out an argument in behalf
of the rights of Maine, that would fully vindicate them, and vindicate
the course of government, from all reproaches, founded on noncompliance
with the advice and recommendation of the sovereign arbiter.
Entertaining these sentiments, as a private citizen, I have no
hesitation in expressing my opinion that the American government,
disregarding, and declining to be bound by, the award, ought to open a
negotiation with Great Britain on the subject of this disputed boundary.
I have no apprehensions that such a step would, necessarily, bring on
war. Great Britain might have adopted one of two courses; either to
proceed to occupy the territory which the sovereign arbiter thinks it
would be suitable for her to possess, and signified her determination
to do so; or, to communicate to our government her willingness to
be governed by the advice of the arbiter, and inquired as to the
intentions, on that subject, of this government. The former course
would have been harsh, and might have involved the two countries
in war. The latter was more respectful, and, having been adopted by
Great Britain, it will be natural and easy to return an answer to
the diplomatic note which has been received, stating the grounds and
arguments which induce the American government to believe itself not
bound by what has been done by the king of Holland. Such an answer
would be preliminary to a negotiation, which would necessarily follow.
It is desirable, undoubtedly, to have all controversies between
nations settled, and amicably, if possible. But this is not the only
question remaining to be decided between the two powers, and if that
mutual respect and friendly disposition which, it is to be hoped, may
predominate in the official intercourse between the two countries,
should prevail, although the dispute, by the intervention of the Dutch
king, has been somewhat complicated, we need not, I think, despair
finally of some satisfactory arrangement.
These are my private views, Mr. President. But I think the president
has come to the senate too soon, or come to it in a wrong character.
As a part of the executive government, I think the senate has nothing
to do with the question, in the present state of it. Holding this
opinion, I shall vote against the resolution reported by the committee
of foreign affairs, and I shall vote against any other resolution
or proposition which may imply or assume a power in the senate of
the United States to act in the case. The president, it seems to me,
is invested, exclusively, with the power of deciding, in the first
instance, whether any and what obligations, if any, have been created
upon the American government, in consequence of the act of the king
of the Netherlands; and whether it be expedient or not to open a
negotiation with Great Britain. And I think he should be left to his
constitutional responsibility, to pursue such a course as a sense of
duty may prompt.
ON PRESIDENT JACKSON’S VETO OF THE BILL TO RECHARTER
THE UNITED STATES BANK.