_Washington, February 6, 1838_.
HENRY S. FOX, Esq., etc.:
The undersigned, Secretary of State of the United States, has the honor
to acknowledge the receipt of the note of Mr. Fox, envoy extraordinary
and minister plenipotentiary of Her Britannic Majesty, of the 10th
ultimo, in which he presents, by direction of his Government, certain
observations in 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. McLane of February 10, 1834,
alleged that although the arbiter had not decided the first of the three
main questions proposed to him, 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 Restigouche 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 containing 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 _alone_ 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 passage cited by him
from 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 adjudication 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 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
erroneous 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 determined 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
constituted 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 the same motives that the undersigned now proceeds to
make a brief comment upon the observations contained in Mr. Fox's note
of the 10th 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 mention 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 supposes
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 attentive examination of the context will shew that the
word "_alone_" 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 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 _such
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 contemplated two different
_species_ of rivers as admissible into _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 boundary. 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 grammatical 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 divided _immediately_
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 Ocean, 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 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 dispute 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 falling 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 _directly_ into the
Atlantic, and that they thus constitute a _species_ by themselves, while
it denies that they are therefore excluded by the arbiter from the genus
of "4' rivers falling into the Atlantic."
The undersigned avails himself of this opportunity to renew to Mr. Fox
the assurance of his distinguished consideration.