DEPARTMENT OF STATE,

_Washington, February 7, 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 addressed to him on the 10th

ultimo by Mr. Fox, Her Britannic Majesty's envoy extraordinary and

minister plenipotentiary at Washington, 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 him the attentive examination 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 boundary according to the letter

of the treaty of 1783. The President, however, for the purpose 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 ascertaining

the sense of the State authorities upon the expediency of meeting those

views so 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 without 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 10th

ultimo. After adverting 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 jurisdiction 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 British 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 proposition on the

part of Great Britain that led to it was supposed to have been, without

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 preponderating importance of terminating at once and

forever this controversy by establishing 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. Bankhead'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 outline 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. Bankhead, just

adverted to, although professedly based on 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 Her Majesty's

Government. It was therefore fairly presumed that the river line

presented, in the opinion of Her Majesty's Government, advantages

sufficient to counterbalance any loss of territory by either party that

would follow its adoption as a boundary. Another recommendation of the

river 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 arrangement 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 communication, 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 proposition 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 better 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

it 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 parties 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

Majesty'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 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 Government the modification of the American proposition was, as

understood by the undersigned, 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

misapprehension. 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 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 negotiation be entertained at all upon the inconclusive and

unsatisfactory basis afforded by the British counter proposition or

substitute, which possesses hardly a feature in common 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.

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