_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.