_Mr. Fox to Mr. Forsyth_.
WASHINGTON, _January 19, 1838_.
Hon. JOHN FORSYTH, etc.:
The undersigned, Her Britannic Majesty's envoy extraordinary and
minister plenipotentiary, has received the orders of his Government
to make the following communication 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 sincere 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 unavailing. 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 to the 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
Netherlands 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 conventional
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 general 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 determined 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 right one,
Great Britain is surely still more entitled to insist upon a similar
pretension, and to assert that until the line of the treaty shall be
established to the satisfaction 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 conflicting pretensions seems to point out the expediency of a
compromise, and what compromise can be more fair than that which would
give to each party one-half of the subject-matter of dispute?
A conventional 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 boundary 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 arrangement 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, nevertheless, 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 southern 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 demonstrated 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 difficulties 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; but at the same time they are so unwilling to
reject the only plan now left 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 principle 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 commission 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 accompanied 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 highlands 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, be likely
when rendered to lead to an ultimate settlement 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 Government 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 Secretary 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 Government 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.
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 contained 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 appointment 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 assenting 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.