DEPARTMENT OF STATE,

_Washington, March 1, 1838_.

His Excellency EDWARD KENT,

_Governor of the State of Maine_.

SIR: The discussions between the Federal Government and that of Great

Britain in respect to the northeastern boundary of the United States

have arrived at a stage in which the President thinks it due to the

State of Maine and necessary to the intelligent action of the General

Government to take the sense of that State in regard to the expediency

of opening a direct negotiation for the establishment of a conventional

line, and if it should deem an attempt to adjust the matter of

controversy in that form advisable, then to ask its assent to the same.

With this view and to place the government of Maine in full possession

of the present state of the negotiation and of all the discussions that

have been had upon the subject, the accompanying documents are

communicated, which, taken in connection with those heretofore

transmitted, will be found to contain that information.

The principles which have hitherto governed every successive

Administration of the Federal Government in respect to its powers and

duties in the matter are--

First. That it has power to settle the boundary line in question with

Great Britain upon the principles and according to the stipulations

of the treaty of 1783, either by direct negotiation or, in case of

ascertained inability to do so, by arbitration, and that it is its duty

to make all proper efforts to accomplish this object by one or the other

of those means.

Second. That the General Government is not competent to negotiate,

unless, perhaps, on grounds of imperious public necessity, a

conventional line involving a cession of territory to which the State

of Maine is entitled, or the exchange thereof for other territory not

included within the limits of that State according to the true

construction of the treaty, without the consent of the State.

In these views of his predecessors in office the President fully

concurs, and it is his design to continue to act upon them.

The attention of the Federal Government has, of course, in the first

instance been directed to efforts to settle the treaty line. A

historical outline of the measures which have been successively taken

by it to that end may be useful to the government of Maine in coming

to a conclusion on the proposition now submitted. It will, however, be

unnecessary here to do more than advert to the cardinal features of this

protracted negotiation.

The treaty of peace between the United States of America and His

Britannic Majesty, concluded at Paris in September, 1783, defines the

boundaries of the said States, and the following words, taken from the

second article of that instrument, are intended to designate a part

of the boundary between those States and the British North American

Provinces, viz: "From the northwest angle of Nova Scotia, viz, that

angle which is formed by a line drawn due north from the source of the

St. Croix River to the highlands; along the said highlands which divide

those rivers that empty themselves into the river St. Lawrence from

those which fall into the Atlantic Ocean to the northwesternmost head of

Connecticut River;" ... "east by a line to be drawn along the middle of

the river St. Croix from its mouth in the Bay of Fundy to its source,

and from its source directly north to the aforesaid highlands which

divide the rivers that fall into the Atlantic Ocean from those which

fall into the river St. Lawrence." An immediate execution of some of

the provisions of this treaty was, however, delayed by circumstances on

which it is now unnecessary to dwell, and in November, 1794, a second

treaty was concluded between the two powers. In the meantime, doubts

having arisen as to what river was truly intended under the name of the

St. Croix mentioned in the treaty of peace and forming a part of the

boundary therein described, this question was referred by virtue of

the fifth article of the new treaty to the decision of a commission

appointed in the manner therein prescribed, both parties agreeing to

consider such decision final and conclusive. The commissioners appointed

in pursuance of the fifth article of the treaty of 1794 decided by

their declaration of October 25, 1798, that the northern branch

(Cheputnaticook) of a river called Scoodiac was the true river St. Croix

intended by the treaty of peace.

At the date of the treaty of Ghent, December 24, 1814, the whole of

the boundary line from the source of the river St. Croix to the most

northwesternmost point of the Lake of the Woods still remained

unascertained, and it was therefore agreed to provide for a final

adjustment thereof. For this purpose the appointment of commissioners

was authorized by the fifth article of the treaty of Ghent, with power

to ascertain and determine the northwest angle of Nova Scotia and the

northwestern-most head of Connecticut River, in conformity with the

provisions of the treaty of 1783, and to cause the boundary from the

source of the river St. Croix to the river Iroquois or Cateraguy to be

surveyed and marked according to the said provisions, etc. In the event

of the commissioners differing, or both or either of them failing to

act, the same article made provision for a reference to a friendly

sovereign or state. Commissioners were appointed under this article in

1815-16, but although their sessions continued several years, they were

unable to agree on any of the matters referred to them. Separate reports

were accordingly made to both Governments of the two commissioners in

1822, stating the points on which they differed and the grounds upon

which their respective opinions had been formed. The case having thus

happened which made it necessary to refer the points of difference to a

friendly sovereign or state, it was deemed expedient by the parties to

regulate this reference by a formal arrangement. A convention for the

purpose was therefore concluded on the 29th of September, 1827, and the

two Governments subsequently agreed in the choice of His Majesty the

King of the Netherlands as arbiter, who consented to act as such. The

submission of the points of difference, three in number, was accordingly

made to that Sovereign, and his award, or rather written opinion on the

questions submitted to him, was rendered on the 10th of January, 1831.

On the 7th of December following the President communicated the award

of the arbiter to the Senate of the United States for the advice and

consent of that body as to its execution, and at the same time intimated

the willingness of the British Government to abide by it. The result was

a determination on the part of the Senate not to consider the decision

of His Netherland Majesty obligatory and a refusal to advise and consent

to its execution. They, however, passed a resolution in June, 1832,

advising the President to open a new negotiation with His Britannic

Majesty's Government for the ascertainment of the boundary between the

possessions of the two powers on the northeastern frontier of the United

States according to the definitive treaty of peace. Of the negotiation

subsequent to this event it is deemed proper to take a more particular

notice.

In July the result of the action of the Senate in relation to the award

was communicated to Mr. Bankhead, the British chargé d'affaires, and he

was informed that the resolution had been adopted in the conviction that

the sovereign arbiter, instead of deciding the questions submitted to

him, had recommended a specified compromise of them. The Secretary of

State at the same time expressed the desire of the President to enter

into further negotiation in pursuance of the resolution of the Senate,

and proposed that the discussion should be carried on at Washington. He

also said that if the plenipotentiaries of the two parties should fail

in this new attempt to agree upon the line intended by the treaty of

1783 there would probably be less difficulty than before in fixing a

convenient boundary, as measures were in progress to obtain from the

State of Maine more extensive powers than were before possessed, with

a view of overcoming the constitutional obstacles which had opposed

themselves to such an arrangement; and he further intimated that the

new negotiation would naturally embrace the important question of the

navigation of the river St. John.

In April, 1833, Sir Charles R. Vaughan, the British minister,

addressed a note to the Department of State, in which, hopeless of

finding out by a new negotiation an assumed line of boundary which

so many attempts had been fruitlessly made to discover, he wished to

ascertain, first, the principle of the plan of boundary which the

American Government appeared to contemplate as likely to be more

convenient to both parties than those hitherto discussed, and, secondly,

whether any, and what, arrangement for avoiding the constitutional

difficulty alluded to had yet been concluded with the State of Maine.

Satisfactory answers on these points, he said, would enable the British

Government to decide whether it would entertain the proposition, but His

Majesty's Government could not consent to embarrass the negotiation

respecting the boundary by mixing up with it a discussion regarding the

navigation of the St. John as an integral part of the same question or

as necessarily connected with it.

In reply to this note, Mr. Livingston, under date of the 30th of April,

stated that the arrangement spoken of in his previous communication, by

which the Government of the United States expected to be enabled to

treat for a more convenient boundary, had not been effected, and that

as the suggestion in regard to the navigation of the St. John was

introduced merely to form a part of the system of compensations in

negotiating for such a boundary if that of the treaty should be

abandoned, it would not be insisted on.

The proposition of the President for the appointment of a joint

commission, with an umpire, to decide upon all points on which the

two Governments disagree was then presented. It was accompanied by a

suggestion that the controversy might be terminated by the application

to it of the rule for surveying and laying down the boundaries of tracts

and of countries designated by natural objects, the precise situation

of which is not known, viz, that the natural objects called for as

terminating points should first be found, and that the lines should then

be drawn to them from the given points with the least possible departure

from the course prescribed in the instrument describing the boundary.

Two modes were suggested in which such commission might be constituted:

First, that it should consist of commissioners to be chosen in equal

numbers by the two parties, with an umpire selected by some friendly

sovereign from among the most skillful men in Europe; or, secondly, that

it should be entirely composed of such men so selected, to be attended

in the survey and view of the country by agents appointed by the

parties. This commission, it was afterwards proposed, should be

restricted to the simple question of determining the point designated

by the treaty as the highlands which divide the waters that fall into

the Atlantic from those which flow into the St. Lawrence; that these

highlands should be sought for in a north or northwest direction from

the source of the St. Croix, and that a straight line to be drawn from

the monument at the head of that river to those highlands should be

considered, so far as it extends, as a part of the boundary in question.

The commissioners were then to designate the course of the line along

the highlands and to fix on the northwesternmost head of the Connecticut

River.

In a note of 31st May the British minister suggested that this perplexed

and hitherto interminable question could only be set at rest by an

abandonment of the defective description of boundary contained in the

treaty, by the two Governments mutually agreeing upon a conventional

line more convenient to both parties than those insisted upon by the

commissioners under the fifth article of the treaty of Ghent, or that

suggested by the King of the Netherlands.

Mr. McLane remarked in reply (June 5) that the embarrassments in tracing

the treaty boundary had arisen more from the principles assumed and

from the manner of seeking for it than from any real defect in the

description when properly understood; that in the present state of the

business the suggestion of Sir Charles R. Vaughan would add to the

existing difficulties growing out of a want of power in the General

Government under the Constitution of the United States to dispose of

territory belonging to either of the States of the Union without the

consent of the State; that as a conventional line to the south of and

confessedly variant from that of the treaty would deprive the State of

Maine of a portion of the territory she claims, it was not probable

that her consent to it would be given while there remained a reasonable

prospect of discovering the line of the treaty of 1783, and that the

President would not be authorized, after the recent proceedings in the

Senate, to venture now to agree upon a conventional line without such

consent, whilst the proposition submitted in April afforded not only a

fair prospect, but in his opinion the certain means, of ascertaining the

boundary called for by the treaty of 1783 and of finally terminating all

the perplexities which have encompassed that subject.

In February, 1834, Sir Charles R. Vaughan, after submitting certain

observations intended to controvert the positions assumed by the United

States on the subject of the constitutional difficulty by which the

American Government was prevented from acquiescing in the arrangement

recommended by the King of the Netherlands for the settlement of the

boundary in the neighborhood of the St. John, asserted that the two

Governments bound themselves by the convention of September, 1827,

to submit to an arbiter certain points of difference relative to the

boundary between the American and British dominions; that the arbiter

was called on to determine certain questions, and that if he has

determined the greater part of the points submitted to him his decision

on them ought not to be set aside merely because he declares that one

remaining point can not be decided in conformity with the words of the

treaty of 1783, and therefore recommends to the parties a compromise on

that particular point; that the main points referred to the arbiter were

three in number; that upon the second and third of these he made a plain

and positive decision; that upon the remaining point he has declared

that it is impossible to find a spot or to trace a line which shall

fulfill all the conditions required by the words of the treaty for the

northwest angle of Nova Scotia and for the highlands along which the

boundary from that angle is to be drawn; yet that in the course of his

reasoning upon this point he has decided several questions connected

with it upon which the two parties had entertained different views, viz:

"First. The arbiter expresses his opinion that the term 'highlands' may

properly be applied not only to a hilly and elevated country, but to

a tract of land which, without being hilly, divides waters flowing in

different directions, and consequently, according to this opinion, the

highlands to be sought for are not necessarily a range of mountains,

but rather the summit level of the country.

"Second. The arbiter expresses his opinion that an inquiry as to what

were the ancient boundaries of the North American Provinces can be

of no use for the present purpose, because those boundaries were not

maintained by the treaty of 1783 and had in truth never been distinctly

ascertained and laid down.

"Third. The arbiter declares that the northwest angle of Nova Scotia

mentioned in the treaty of 1783 is not a point which was then known

and ascertained; that it is not an angle which is created by the

intersection of any lines of boundary at that time acknowledged as

existing, but that it is an angle still to be found and to be created

by the intersection of new lines, which are hereafter to be drawn in

pursuance of the stipulations of the treaty; and further, that the

nature of the country eastward of the said angle affords no argument

for laying that angle down in one place rather than in another.

"Fourth. He states that no just argument can be deduced for the

settlement of this question from the exercise of the rights of

sovereignty over the fief of Madawaska and over the Madawaska

settlement.

"Fifth. He declares that the highlands contemplated in the treaty should

divide immediately, and not mediately, rivers flowing into the St.

Lawrence and rivers flowing into the Atlantic, and that the word

'divide' requires contiguity of the things to be divided.

"Sixth. He declares that rivers falling into the Bay of Chaleurs and

the Bay of Fundy can not be considered according to the meaning of the

treaty as rivers flowing into the Atlantic, and specifically that the

rivers St. John and Restigouche can not be looked upon as answerable to

the latter description.

"Seventh. He declares that neither the line of boundary claimed by Great

Britain nor that claimed by the United States can be adjudged as the

true line without departing from the principles of equity and justice as

between the two parties."

It was the opinion of His Majesty's Government, Sir Charles alleged,

that the decisions of the arbiter upon the second and third points

referred to him, as well as upon the subordinate questions, ought to be

acquiesced in by the two Governments, and that in any future attempt to

establish a boundary, whether in strict conformity with the words of the

treaty of 1783 or by agreeing to the mode of settlement recommended by

the arbiter, it would be necessary to adopt these seven decisions as

a groundwork for further proceedings; that the British Government,

therefore, previously to any further negotiation, claimed from the

Government of the United States an acquiescence in the decisions

pronounced by the arbiter upon all those points which he had decided,

and as a preliminary to any attempt to settle the remaining point by

negotiation to be satisfied that the Federal Government was possessed of

the necessary powers to carry into effect any arrangement upon which the

two parties might agree.

With respect to the proposition made by the American Government, Sir

Charles thought that the difficulty which was found insurmountable as

against the line recommended by the King of the Netherlands, viz., the

want of authority to agree to any line which might imply a cession of

any part of the territory to which the treaty as hitherto interpreted by

the United States might appear to entitle one of the component States of

the Union, would be equally fatal to that suggested by Mr. Livingston,

since a line drawn from the head of the St. Croix to highlands found to

the westward of the meridian of that spot would not be the boundary of

the treaty and might be more justly objected to by Maine and with more

appearance of reason than that proposed by the arbiter.

The reply of Mr. McLane to the preceding note is dated on the 11th of

March. He expressed his regret that His Britannic Majesty's Government

should still consider any part of the opinion of the arbiter obligatory

on either party. Those opinions, the Secretary stated, could not have

been carried into effect by the President without the concurrence of the

Senate, who, regarding them not only as not determining the principal

object of the reference, but as in fact deciding that object to be

impracticable, and therefore recommending to the two parties a boundary

not even contemplated either by the treaty or by the reference nor

within the power of the General Government to take, declined to give

their advice and consent to the execution of the measures recommended by

the arbiter, but did advise the Executive to open a new negotiation for

the ascertainment of the boundary in pursuance of the treaty of 1783,

and the proposition of Mr. Livingston, submitted in his letter of 30th

of April, 1833, accordingly proceeded upon that basis. Mr. McLane denied

that a decision, much less the expression of an opinion, by the arbiter

upon some of the disputed points, but of a character not to settle the

real controversy, was binding upon either party, and he alleged that

the most material point in the line of the true boundary, both as it

respects the difficulty of the subject and the extent of territory and

dominions of the respective Governments, the arbiter not only failed to

decide, but acknowledged his inability to decide, thereby imposing upon

both Governments the unavoidable necessity of resorting to further

negotiation to ascertain the treaty boundary and absolving each party

from any obligation to adopt his recommendations. The Secretary also

declined to admit that of the three main points referred to the arbiter

as necessary to ascertain the boundary of the treaty he had decided two.

On the first point, Mr. McLane said, it was not contended a decision was

made or that either the angle or the highlands called for by the treaty

was found, and on the third point an opinion merely was expressed that

it would be suitable to proceed to fresh operations to measure the

observed latitude, etc.

The Secretary admitted that if the American proposition should be

acceded to by His Majesty's Government and the commission hereafter to

be appointed should result in ascertaining the true situation of the

boundary called for by the treaty of 1783, that it would be afterwards

necessary, in order to ascertain the true line, to settle the other two

points according to which it should be traced. He therefore offered,

if the American proposition should be acceded to, notwithstanding the

obligatory effect of the decision of the arbiter on the point is denied,

"to take the stream situated farthest to the northwest among those which

fall into the northernmost of the three lakes, the last of which bears

the name of Connecticut Lake, as the north-westernmost head of the

Connecticut River according to the treaty of 1783;" and as it respects

the third point referred to the arbiter, the line of boundary on the

forty-fifth degree of latitude, but upon which he failed to decide, the

President would agree, if the proposition as to the first point was

embraced, to adopt the old line surveyed and marked by Valentine and

Collins in 1771 and 1772.

The Secretary then proceeded to state further and insuperable objections

to an acquiescence by the United States in the opinions supposed to have

been pronounced by the arbiter in the course of his reasoning upon the

first point submitted to him. He remarked that the views expressed

by the arbiter on these subordinate matters could not be regarded as

decisions within the meaning of the reference, but rather as postulates

or premises, by which he arrived at the opinion expressed in regard to

the point in dispute. By an acquiescence in them, therefore, as required

by Great Britain, the United States would reject as erroneous the

conclusion of the arbiter, whilst they would adopt the premises and

reasoning by which it was attained--that the seven postulates or

premises presented as necessary to be considered by the United States

are but part of those on which the arbiter was equally explicit in

the expression of his views, that on others his reasoning might be

considered as more favorable to the pretensions of this Government, and

that no reason was perceived why an acquiescence in his opinions upon

them should not equally apply to all the premises assumed by him and be

binding upon both parties. Mr. McLane was, however, persuaded that there

was no obligation on either Government to acquiesce in the opinion of

the arbiter on any of the matters involved in his premises; that such

acquiescence would defeat the end of the present negotiation, and that

as it appeared to be mutually conceded that the arbiter had not been

able to decide upon the first and most material point so as to make a

binding decision, there could certainly be no greater obligation to

yield to his opinions on subordinate matters merely. The Secretary

further observed that the most material point of the three submitted

to the arbiter was that of the highlands, to which the President's

proposition directly applies, and which are designated in the treaty of

peace as the northwest angle of Nova Scotia, formed by a line drawn due

north from the source of the St. Croix River to the highlands dividing

the rivers, etc.; that the arbiter found it impossible to decide this

point, and therefore recommended a new line, different from that called

for by the treaty of 1783, and which could only be established by

a conventional arrangement between the two Governments; that the

Government of the United States could not adopt this recommendation

nor agree upon a new and conventional line without the consent of the

State of Maine; that the present negotiation proposed to ascertain the

boundary according to the treaty of 1783, and for this purpose, however

attained, the authority of the Government of the United States was

complete; that the proposition offered by the Government of the United

States promised, in the opinion of the President, the means of

ascertaining the true line by discovering the highlands of the treaty,

but the British Government asked the United States as a preliminary

concession to acquiesce in the opinion of the arbiter upon certain

subordinate facts--a concession which would in effect defeat the

sole object, not only of the proposition, but of the negotiation,

viz, the determination of the boundary according to the treaty of 1783

by confining the negotiation to a conventional line, to which this

Government had not the authority to agree. Mr. McLane also said that

if by a resort to the plain rule now recommended it should be found

impracticable to trace the boundary according to the definitive

treaty, it would then be time enough to enter upon a negotiation for a

conventional substitute for it. He stated in answer to the suggestion of

Sir Charles R. Vaughan that the objection urged against the line of the

arbiter would equally lie against that suggested by Mr. Livingston; that

the authority of the Government to ascertain the true line of the treaty

was unquestionable, and that the American proposition, by confining the

course to the natural object, would be a legitimate ascertainment of

that line.

In a note dated 16th March Sir Charles R. Vaughan offered some

observations upon the objections on the part of the United States to

acquiesce in the points previously submitted to the American Government.

He said that the adoption of the views of the British Government by the

Government of the United States was meant to be the groundwork of future

proceedings, whether those proceedings were to be directed to another

attempt to trace the boundary as proposed by the latter or to a division

of the territory depending upon the conventional line. He maintained

that the arbiter had decided, as the British Government asserted, two

out of the three main points submitted for his decision, viz, what

ought to be considered as the northwesternmost head of the Connecticut

(but which the Government of the United States is only willing to admit

conditionally) and the point relative to tracing the boundary along the

forty-fifth degree of latitude. This point, he observed, Mr. McLane

wished to dispose of by adopting the old line of Collins and Valentine,

which was suspected of great inaccuracy by both parties, and the only

motive for retaining which was because some American citizens have made

settlements upon territory that a new survey might throw into the

possession of Great Britain. Sir Charles denied that the acquiescence of

the United States in the seven subordinate points lately submitted by

His Majesty's Government would confine the negotiation to a conventional

line, to which the President had no authority to agree, and affirmed

that not a step could be taken by the commissioners to be appointed

according to Mr. Livingston's proposition, notwithstanding the

unlimited discretion which it was proposed to give them, unless the

two Governments agreed upon two of the seven subordinate points--"the

character of the land they are to discover as dividing waters according

to the treaty of 1783 and what are to be considered as Atlantic rivers."

In answer to Mr. McLane's observation that on many points the reasoning

of the arbiter had been more favorable to the United States than to

Great Britain, and that therefore acquiescence should equally apply to

all the premises assumed, Sir Charles expressed his confidence that if

acquiescence in them could facilitate the object which now occupied both

Governments they would meet with the most favored consideration. Sir

Charles adverted to the obligations contracted under the seventh article

of the convention, to the opinion of His Majesty's Government that they

were binding and its willingness to abide by the award of the arbiter.

He referred to the small majority by which he supposed the award to have

been defeated in the Senate of the United States and a new negotiation

advised to be opened, to the complicated nature of the plan proposed

by the United States for another attempt to trace the boundary of

the treaty, to the rejection of the points proposed by the British

Government to render that plan more practicable, etc., and regretted

sincerely that the award of the arbiter, which conferred upon the United

States three-fifths of the disputed territory, together with Rouses

Point--a much greater concession than is ever likely to be obtained

by a protracted negotiation--was set aside. An alleged insuperable

constitutional difficulty having occasioned the rejection of the award,

Sir Charles wished to ascertain previously to any further proceedings

how far the General Government had the power to carry into effect any

arrangement resulting from a new negotiation, the answer of Mr. McLane

upon this point having been confined to stating that should a new

commission of survey, freed from the restriction of following the due

north line of the treaty, find anywhere westward of that line highlands

separating rivers according to the treaty of 1783, a line drawn from the

monument at the source of the St. Croix would be such a fulfillment of

the terms of that treaty that the President could agree to make it the

boundary without reference to the State of Maine.

Mr. McLane, under date of 21st March, corrected the error into which Sir

Charles had fallen in regard to the proceedings on the award in the

Senate of the United States, and showed that that body not only failed,

but by two repeated votes of 35 and 34 to 8 refused, to consent to the

execution of the award, and by necessary implication denied its binding

effect upon the United States, thus putting it out of the power of the

President to carry it into effect and leaving the high parties to the

submission situated precisely as they were prior to the selection of the

arbiter.

The President had perceived, Mr. McLane said, in all the previous

efforts to adjust the boundary in accordance with the terms of the

treaty of 1783 that a natural and uniform rule in the settlement of

disputed questions of location had been quite overlooked; that the

chief, if not only, difficulty arose from a supposed necessity of

finding highlands corresponding with the treaty description in a due

north line from the monument, but it was plain that if such highlands

could be anywhere discovered it would be a legal execution of the treaty

to draw a line to them from the head of the St. Croix without regard to

the precise course given in the treaty. It therefore became his duty to

urge the adoption of this principle upon the Government of His Britannic

Majesty as perhaps the best expedient which remained for ascertaining

the boundary of the treaty of 1783. The Secretary could not perceive

in the plan proposed anything so complicated as Sir Charles appeared

to suppose. On the contrary, it was recommended to approbation and

confidence by its entire simplicity. It chiefly required the discovery

of the highlands called for by the treaty, and the mode of reaching

them upon the principle suggested was so simple that no observations

could make it plainer. The difficulty of discovering such highlands,

Mr. McLane said, was presumed not to be insuperable. The arbiter himself

was not understood to have found it impracticable to discover highlands

answering the description of the highlands of the treaty, though unable

to find them due north from the monument; and certainly it could not be

more difficult for commissioners on the spot to arrive at a conclusion

satisfactory to their own judgment as to the locality of the highlands.

Mr. McLane, in answer to Sir Charles's request for information on the

subject, stated that the difficulty in the way of the adoption of

the line recommended by the arbiter was the want of authority in the

Government of the United States to agree to a line not only confessedly

different from the line called for by the treaty, but which would

deprive the State of Maine of a portion of territory to which she would

be entitled according to the line of the definitive treaty; that by the

President's proposition a commission would be raised, not to establish

a new line differing from the treaty of 1783, but to determine what

the true and original boundary was and in which of the two disagreeing

parties the right to the disputed territory originally was; that for

this purpose the authority of the original commissioners, if they could

have agreed, was complete under the Ghent treaty, and that of the new

commission proposed to be constituted could not be less.

Sir Charles R. Vaughan explained, under date of the 24th of March, with

regard to his observation "that the mode in which it was proposed by the

United States to settle the boundary was complicated; that he did not

mean to apply it to the adoption of a rule in the settlement of disputed

questions of location, but to the manner in which it is proposed by the

United States that the new commission of survey shall be selected and

constituted."

On the 8th of December, 1834, Sir Charles R. Vaughan transmitted a note

to the Department of State, in which, after a passing expression of the

regret of His Majesty's Government that the American Government still

declined to come to a separate understanding on the several points of

difference with respect to which the elements of decision were fully

before both Governments, but without abandoning the argument contained

in his note of 10th February last, he addressed himself exclusively to

the American proposition for the appointment of a new commission to be

empowered to seek westward of the meridian of the St. Croix highlands

answering to the description of those mentioned in the treaty of 1783.

He stated with regard to the rule of surveying on which the proposition

was founded that however just and reasonable it might be, His Majesty's

Government did not consider it so generally established and recognized

as Mr. McLane assumed it to be; that, indeed, no similar case was

recollected in which the principle asserted had been put in practice;

yet, on the contrary, one was remembered not only analogous to that

under discussion, but arising out of the same article of the same

treaty, in which the supposed rule was invested by the agents of the

American Government itself; that the treaty of 1783 declared that the

line of boundary was to proceed from the Lake of the Woods "in a due

west course to the Mississippi," but it being ascertained that such

a line could never reach that river, since its sources lie south of

the latitude of the Lake of the Woods, the commissioners, instead of

adhering to the natural object--the source of the Mississippi--and

drawing a new connecting line to it from the Lake of the Woods, adhered

to the arbitrary line to be drawn due west from the lake and abandoned

the Mississippi, the specific landmark mentioned in the treaty.

Sir Charles further stated that if the President was persuaded that he

could carry out the principle of surveying he had proposed without the

consent of Maine, and if no hope remained, as was alleged by Mr. McLane,

of overcoming the constitutional difficulty in any other way until at

least this proposition should have been tried and have failed, His

Majesty's Government, foregoing their own doubts on the subject, were

ready to acquiesce in the proceeding proposed by the President if that

proceeding could be carried into effect in a manner not otherwise

objectionable; that "His Majesty's Government would consider it

desirable that the principles on which the new commissioners would have

to conduct their survey should be settled beforehand by a special

convention between the two Governments;" that there was, indeed, one

preliminary question upon which it was obviously necessary the two

Governments should agree before the commission could begin their survey

with any chance of success, viz, What is the precise meaning to be

attached to the words employed in the treaty to define the highlands

which the commissioners are to seek for? that those highlands are to be

distinguished from other highlands by the rivers flowing from them, and

those distinguishing rivers to be known from others by the situation

of their mouths; that with respect to the rivers flowing south into

the Atlantic Ocean a difference of opinion existed between the two

Governments; that whilst the American Government contended that rivers

falling into the Bay of Fundy were, the British Government contended

that they were not, for the purposes of the treaty, rivers falling into

the Atlantic Ocean, and that the views and arguments of the British

Government on this point had been confirmed by an impartial authority

selected by the common consent of the two Governments, who was of

opinion that the rivers St. John and Restigouche were not Atlantic

rivers within the meaning of the treaty, and that His Majesty's

Government therefore trusted that the American Cabinet would concur with

that of His Majesty in deciding "that the Atlantic rivers which are to

guide the commissioners in searching for the highlands described in the

treaty are those which fall into the sea to the westward of the mouth of

the river St. Croix;" that a clear agreement on this point must be an

indispensable preliminary to the establishment of any new commission

of survey; that till this point be decided no survey of commissioners

could lead to a useful result, but that its decision turns upon the

interpretation of the words of a treaty, and not upon the operations of

surveyors; and His Majesty's Government, having once submitted it, in

common with other points, to the judgment of an impartial arbiter, by

whose award they had declared themselves ready to abide, could not

consent to refer it to any other arbitration.

In a note from the Department of State dated 28th April, 1835, Sir

Charles R. Vaughan was assured that his prompt suggestion, as His

Britannic Majesty's minister, that a negotiation should be opened for

the establishment of a conventional boundary between the two countries

was duly appreciated by the President, who, had he possessed like powers

with His Majesty's Government over the subject, would have met the

suggestion in a favorable spirit.

The Secretary observed that the submission of the whole subject or

any part of it to a new arbitrator promised too little to attract the

favorable consideration of either party; that the desired adjustment of

the controversy was consequently to be sought for in the application of

some new principle to the controverted question, and that the President

thought that by a faithful prosecution of the plan submitted by his

direction a settlement of the boundary in dispute according to the terms

of the treaty of 1783 was attainable.

With regard to the rule of practical surveying offered as the basis of

the American proposition, he said if it should become material to do

so--which was not to be anticipated--he would find no difficulty either

in fortifying the ground occupied by this Government in this regard or

in satisfying Sir Charles that the instance brought into notice by His

Britannic Majesty's Government of a supposed departure from the rule

was not at variance with the assertion of Mr. Livingston repeated by

Mr. McLane. The Secretary therefore limited himself to the remark that

the line of demarcation referred to by Sir Charles was not established

as the true boundary prescribed by the treaty of 1783, but was a

conventional substitute for it, the result of a new negotiation

controlled by other considerations than those to be drawn from that

instrument only.

The Secretary expressed the President's unfeigned regret upon learning

the decision of His Majesty's Government not to agree to the proposition

made on the part of the United States without a precedent compliance

by them with inadmissible conditions. He said that the views of this

Government in regard to this proposal of His Majesty's Government had

been already communicated to Sir Charles R. Vaughan, and the President

perceived with pain that the reasons upon which these opinions were

founded had not been found to possess sufficient force and justice to

induce the entire withdrawal of the objectionable conditions, but that,

on the contrary, while His Majesty's Government had been pleased to

waive for the present six of the seven opinions referred to, the

remaining one, amongst the most important of them all, was still

insisted upon, viz, that the St. John and Restigouche should be treated

by the supposed commission as not being Atlantic rivers according to the

meaning of those terms in the treaty. With reference to that part of Sir

Charles's communication which seeks to strengthen the ground heretofore

taken on this point by the British Government by calling to its aid the

supposed confirmation of the arbiter, the Secretary felt himself

warranted in questioning whether the arbiter had ever given his opinion

that the rivers St. John and Restigouche can not be considered according

to the meaning of the treaty as rivers falling into the Atlantic, and he

insisted that it was not the intention of the arbiter to express the

opinion imputed to him.

The Secretary also informed Sir Charles that the President could not

consent to clog the submission with the condition proposed by Her

Majesty's Government; that a just regard to the rights of the parties

and a proper consideration of his own duties required that the new

submission, if made, should be made without restriction or qualification

upon the discretion of the commissioners other than such as resulted

from established facts and the just interpretation of the definitive

treaty, and such as had been heretofore and were now again tendered to

His Britannic Majesty's Government; that he despaired of obtaining a

better constituted tribunal than the one proposed; that he saw nothing

unfit or improper in submitting the question as to the character in

which the St. John and Restigouche were to be regarded to the decision

of an impartial commission; that the parties had heretofore thought it

proper so to submit it, and that it by no means followed that because

commissioners chosen by the parties themselves, without an umpire, had

failed to come to an agreement respecting it, that the same result would

attend the efforts of a commission differently selected. The Secretary

closed his note by stating that the President had no new proposal

to offer, but would be happy to receive any such proposition as His

Britannic Majesty's Government might think it expedient to make, and by

intimating that he was authorized to confer with Sir Charles whenever

it might suit his convenience and comport with the instructions of his

Government with respect to the treaty boundary or a conventional

substitute for it.

On the 4th of May, 1835, Sir Charles R. Vaughan expressed his regret

that the condition which His Majesty's Government had brought forward as

an essential preliminary to the adoption of the President's proposal had

been declared to be inadmissible by the American Government.

Sir Charles confidently appealed to the tenor of the language of the

award of the arbiter to justify the inference drawn from it by His

Majesty's Government in regard to that point in the dispute which

respects the rivers which are to be considered as falling directly

into the Atlantic. The acquiescence of the United States in what was

understood to be the opinion of the arbiter was invited, he said,

because the new commission could not enter upon their survey in search

of the highlands of the treaty without a previous agreement between

the two Governments what rivers ought to be considered as falling into

the Atlantic, and that if the character in which the Restigouche and

St. John were to be regarded was a question to be submitted to the

commissioners the President's proposition would assume the character of

a new arbitration, which had been already objected to by the Secretary.

Sir Charles also stated that while His Majesty's Government had wished

to maintain the decisions of the arbiter on subordinate points, their

mention had not been confined to those decided in favor of British

claims; that the decisions were nearly balanced in favor of either

party, and the general result of the arbitration was so manifestly in

favor of the United States that to them were assigned three-fifths of

the territory in dispute and Rouses Point, to which they had voluntarily

resigned all claim.

Sir Charles acknowledged with much satisfaction the Secretary's

assurance that if the President possessed the same power as His

Majesty's Government over the question of boundary he would have met

the suggestion of a conventional line, contained in Sir Charles's note

of 31st May, 1833, in a favorable spirit. He lamented that the two

Governments could not coincide in the opinion that the removal of the

only difficulty in the relations between them was attainable by the last

proposal of the President, as it was the only one in his power to offer

in alleviation of the task of tracing the treaty line, to which the

Senate had advised that any further negotiation should be restricted.

He said that he was ready to confer with the Secretary whenever it might

be convenient to receive him, and stated that as to any proposition

which it might be the wish of the United States to receive from His

Majesty's Government respecting a conventional substitute for the treaty

of 1783, it would in the first instance, to avoid constitutional

difficulties in the way of the Executive, be necessary to obtain the

consent of Maine, an object which must be undertaken exclusively by the

General Government of the United States.

Mr. Bankhead, the British chargé d'affaires, in a note to the Department

dated 28th December, 1835, stated that during the three years which had

elapsed since the refusal of the Senate to agree to the award of the

King of the Netherlands, although the British Government had more than

once declared its readiness to abide by its offer to accept the award,

the Government of the United States had as often replied that on its

part that award could not be agreed to; that the British Government

now considered itself by this refusal of the United States fully and

entirely released from the conditional offer which it had made, and

that he was instructed distinctly to announce to the President that

the British Government withdrew its consent to accept the territorial

compromise recommended by the King of the Netherlands.

With regard to the American proposition for the appointment of a new

commission of exploration and survey, Mr. Bankhead could not see, since

the President found himself unable to admit the distinction between the

Bay of Fundy and the Atlantic Ocean, how any useful result could arise

out of the proposed survey. He thought, on the contrary, that if it did

not furnish fresh subjects of difference between the two Governments it

could at best only bring the subject back to the same point at which it

now stood.

To the suggestion of the President that the commission of survey should

be empowered to decide the river question Mr. Bankhead said it was not

in the power of His Majesty's Government to assent; that this question

could not properly be referred to such a commission, because it turned

upon the interpretation to be put upon the words of the treaty of 1783,

and upon the application of that interpretation to geographical facts

already well known and ascertained, and that therefore a commission of

survey had no peculiar competency to decide such a question; that to

refer it to any authority would be to submit it to a fresh arbitration,

and that if His Majesty's Government were prepared to agree to a fresh

arbitration, which was not the case, such arbitration ought necessarily,

instead of being confined to one particular point alone, to include all

the points in dispute between the two Governments; that His Majesty's

Government could therefore only agree to such a commission provided

there were a previous understanding between the two Governments; that

although neither should be required to give up its own interpretation

of the river question, yet "the commissioners should be instructed to

search for highlands upon the character of which no doubt could exist

on either side."

If this modification of the President's proposal should not prove

acceptable, Mr. Bankhead observed, the only remaining way of adjusting

the difference would be to abandon altogether the attempt to draw a line

in conformity with the words of the treaty and to fix upon a convenient

line, to be drawn according to equitable principles and with a view to

the respective interests and the convenience of the two parties. He

stated that His Majesty's Government were perfectly ready to treat for

such a line, and conceived that the natural features of the disputed

territory would afford peculiar facilities for drawing it; that His

Majesty's Government would therefore propose an equal division of the

territory in dispute between Great Britain and the United States, and

that the general outline of such a division would be that the boundary

between the two States should be drawn due north from the head of St.

Croix River till it intersected the St. John; thence up the bed of the

St. John to the southernmost source of that river, and from that point

it should be drawn to the head of the Connecticut River in such manner

as to make the northern and southern allotments of the divided territory

as nearly as possible equal to each other in extent.

In reply to the preceding note the Secretary, under date of February 29,

1836, expressed the President's regret to find that His Britannic

Majesty's Government adhered to its objection to the appointment of a

commission to be chosen in either of the modes heretofore proposed by

the United States and his conviction that the proposition on which it

was founded, "that the river question was a treaty construction only,"

although repeated on various occasions by Great Britain, was

demonstrably untenable, and, indeed, only plausible when material and

most important words of description in the treaty are omitted in quoting

from that instrument. He said that while His Majesty's Government

maintain their position agreement between the United States and Great

Britain on this point was impossible; that the President was therefore

constrained to look to the new and conventional line offered in Mr.

Bankhead's note, but that in such a line the wishes and interests of

Maine were to be consulted, and that the President could not in justice

to himself or that State make any proposition utterly irreconcilable

with her previously well-known opinions on the subject; that the

principle of compromise and equitable division was adopted by the King

of the Netherlands in the line recommended by him, a line rejected by

the United States because unjust to Maine; and yet that line gave to

Great Britain little more than 2,000,000, while the proposition now made

by His Majesty's Government secured to Great Britain of the disputed

land more than 4,000,000 acres; that the division offered by Mr.

Bankhead's note was not in harmony with the equitable rule from which

it is said to spring, and if it were in conformity with it could not

be accepted without disrespect to the previous decisions and just

expectations of Maine. The President was far from attributing this

proposition, the Secretary said, to the desire of His Majesty's

Government to acquire territory. He doubted not that the offer, without

regard to the extent of territory falling to the north or south of the

St. John, was made by His Majesty's Government from a belief that the

substitution of a river for a highland boundary would be useful in

preventing territorial disputes in future; but although the President

coincided in this view of the subject he was compelled to decline the

boundary proposed as inconsistent with the known wishes, rights, and

decisions of the State.

The Secretary concluded by stating that the President, with a view to

terminate at once all controversy, and without regard to the extent of

territory lost by one party or acquired by the other, to establish a

definite and indisputable line, would, if His Majesty's Government

assented to it, apply to the State of Maine for its consent to make the

river St. John from its source to its mouth the boundary between Maine

and His Britannic Majesty's dominions in that part of North America.

Mr. Bankhead acknowledged on the 4th March, 1836, the receipt of

this note from the Department, and said that the rejection of the

conventional line proposed in his previous note would cause His

Majesty's Government much regret. He referred the Secretary to that

part of his note of the 28th December last wherein the proposition of

the President for a commission of exploration and survey was fully

discussed, as it appeared to Mr. Bankhead that the Secretary had not

given the modification on the part of His Majesty's Government of the

American proposition the weight to which it was entitled. He said that

it was offered with the view of meeting as far as practicable the wishes

of the President and of endeavoring by such a preliminary measure to

bring about a settlement of the boundary upon a basis satisfactory to

both parties; that with this view he again submitted to the Secretary

the modified proposal of His Majesty's Government, remarking that the

commissioners who might be appointed were not to _decide_ upon points

of difference, but merely to present to the respective Governments the

result of their labors, which, it was hoped and believed, would pave

the way for an ultimate settlement of the question.

Mr. Bankhead considered it proper to state frankly and clearly that the

proposition offered in the last note from the Department to make the

river St. John from its source to its mouth the boundary between the

United States and His Majesty's Province of New Brunswick was one to

which the British Government, he was convinced, would never agree.

On the 5th March the Secretary expressed regret that his proposition to

make the river St. John the boundary between Maine and New Brunswick

would, in the opinion of Mr. Bankhead, be declined by his Government;

that the Government of the United States could not, however, relinquish

the hope that the proposal, when brought before His Majesty's cabinet

and considered with the attention and deliberation due to its merits,

would be viewed in a more favorable light than that in which it appeared

to have presented itself to Mr. Bankhead. If, however, the Secretary

added, this expectation should be disappointed, it would be necessary

before the President consented to the modification of his previous

proposition for the appointment of a commission of exploration and

survey to be informed more fully of the views of the British Government

in offering the modification, so that he might be enabled to judge how

the report of the commission (which as now proposed to be constituted

was not to decide upon points of difference) would be likely to lead

to an ultimate settlement of the question of boundary, and also which

of the modes proposed for the selection of commissioners was the one

intended to be accepted, with the modification suggested by His

Britannic Majesty's Government.

In January last Mr. Fox, the British minister at Washington, made a

communication to the Department of State, in which, with reference to

the objection preferred by the American Government that it had no power

without the consent of Maine to agree to the arrangement proposed by

Great Britain, since it would be considered by that State as equivalent

to a cession of what she regarded as a part of her territory, he

observed that the objection of the State could not be admitted as valid,

for the principle on which it rested was as good for Great Britain as

it was for Maine; that if the State was entitled to contend that until

the treaty line was determined the boundary claimed by Maine must be

regarded as the right one, Great Britain was still more entitled to

insist on a similar pretension and to assert that until the line of the

treaty shall be established satisfactorily the whole of the disputed

territory ought to be considered as belonging to the British Crown,

since Great Britain was the original possessor, and all the territory

which had not been proved to have been by treaty ceded by her must be

deemed to belong to her still. But Mr. Fox said the existence of these

conflicting pretensions pointed out the expediency of a compromise; and

why, he asked, as a conventional line different from that described in

the treaty was agreed to with respect to the boundary westward from the

Lake of the Woods, should such a line not be agreed to likewise for the

boundary eastward from the Connecticut? Her Majesty's Government could

not, he added, refrain from again pressing this proposition upon the

serious consideration of the United States as the arrangement best

calculated to effect a prompt and satisfactory settlement between

the two powers.

With reference to the American proposition to make the river St. John

from its mouth to its source the boundary, Mr. Fox remarked that it was

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 it would give to Maine all the disputed territory lying south of

the St. John, and in exchange for the remaining part of the territory

lying to the north of the St. John would add to the State of Maine a

large district of New Brunswick--a district smaller in extent, but much

more considerable in value, than the portion of the disputed territory

which lies to the north of the St. John.

With regard to the proposition for the appointment of a commission of

exploration and survey, Mr. Fox stated that Her Majesty's Government,

with little expectation that it could lead to a useful result, but

unwilling to reject the only plan left which seemed to afford a chance

of making a further advance in this matter, would not withhold their

consent to such a commission if the principle upon which it was to be

formed and the manner in which it was to proceed could be satisfactorily

settled; that of the two modes proposed in which such a commission might

be constituted Her Majesty's Government thought the first, viz, 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, would be the best, but suggested that it might 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; that the object of this commission should be

to explore the disputed territory in order to find within its limits

dividing highlands which might answer the description of the treaty, the

search to be made in a north and northwest line from the monument at

the head of the St. Croix; and that Her Majesty's Government had given

their opinion that the commissioners should be instructed to look for

highlands which both parties might acknowledge as fulfilling the

conditions of the treaty.

In answer to the inquiry how the report of the commission would,

according to the views of Her Majesty's Government, be likely when

rendered to lead to an ultimate settlement of the boundary question,

Mr. Fox observed that since the proposal for the appointment of a

commission originated with the Government of the United States, it

was rather for that Government than the Government of Great Britain to

answer this question. Her Majesty's Government had already stated they

had little expectation that such a commission could lead to any useful

result, etc., but that Her Majesty's Government, in the first place,

conceived 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 from them to the head of the St. Croix

should be deemed to be a portion of the boundary between the two

countries. Mr. Fox further referred the Secretary to the previous notes

of Mr. McLane on the subject, in which it was contemplated as one of

the possible results of the proposed commission that such additional

information might be obtained of the features of the country as might

remove all doubt as to the impracticability of laying down a boundary

in accordance with the letter of the treaty. Mr. Fox said that if

the investigations of the commission should show that there was no

reasonable prospect of finding the line described in the treaty of 1783

the constitutional difficulties which now prevented the United States

from agreeing to a conventional line might possibly be removed, and the

way be thus prepared for a satisfactory settlement of the difference by

equitable division of the territory; but, he added in conclusion, if the

two Governments should agree to the appointment of such a commission,

it would be necessary that their agreement should be by a convention,

and it would be obviously indispensable that the State of Maine should

be an assenting party to the arrangement.

In acknowledging the receipt of Mr. Fox's communication at the

Department he was informed (7th February) that the President

experienced deep disappointment in finding that the answer just

presented on the part of the British Government to the proposition

made by this Government with the view of effecting the settlement of

the boundary question was so indefinite in its terms as to render it

impracticable to ascertain without further discussion what were the

real wishes and intentions of Her Majesty's Government respecting the

appointment of a commission of exploration and survey, but that a copy

of it would be transmitted to the executive of Maine for the purpose of

ascertaining the sense of the State authorities upon the expediency of

meeting the views of Her Majesty's Government so far as they were

therein developed.

Occasion was taken at the same time to explain to Mr. Fox, in answer

to the suggestion in his note of the 10th of January last, that the

parallel of latitude adopted as a conventional substitute for the line

designated in the treaty for the boundary westward from the Lake of the

Woods passed over territory within the exclusive jurisdiction of the

General Government, without trenching upon the rights or claims of

any member of the Union, and the legitimate power of the Government,

therefore, to agree to such line was held to be perfect, but that in

acceding to a conventional line for the boundary eastward from the river

Connecticut it would transcend its constitutional powers, since such a

measure could only be carried into effect by violating the jurisdiction

of a sovereign State and assuming to alienate a portion of the territory

claimed by such State.

In reply to the observation of Mr. Fox that it was difficult to

understand upon what ground an expectation could have been entertained

that the proposition to make the St. John the boundary would be received

by Her Majesty's Government, he was informed that the suggestion had

been offered, as the proposition on the part of Great Britain that led

to it was supposed to have been, with regard to the extent of territory

lost or acquired by the respective parties, and in the hope that the

great importance of terminating this controversy by establishing a

definite and indisputable boundary would be seen and acknowledged by the

British Government, and have a correspondent weight in influencing its

decision; that the suggestion in Mr. Bankhead's note of 28th December,

1835, of a part of the river St. John as a portion of the general

outline of a conventional boundary, apparently recognized the superior

advantages of a river over a highland boundary, and that 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 alluded to,

although based upon 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 Great Britain; that it was

therefore fair to presume that the river line, in the opinion of His

Majesty's Government, presented advantages sufficient to counterbalance

any loss of territory by either party that might accrue from its

adoption; and it was also supposed that another recommendation of this

line would be seen by Great Britain 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 and jurisdiction of

all the disputed territory north of that river.

To correct a misapprehension into which Mr. Fox appeared to have fallen,

the distinctive difference between the American proposition for a

commission and that proposition as subsequently modified by Great

Britain was pointed out, and he was informed that although the proposal

originated with this Government, the modification was so fundamentally

important that it entirely changed the nature of the proposition, 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 preferred by the Secretary of State for information relative

to the manner in which the report of the commission as proposed to be

constituted and instructed by the British Government might tend to a

practical result was unfounded. Mr. Fox was also given to understand

that 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

be carried into effect without unnecessary delay; but if the substitute

presented by Her Majesty's Government should be insisted on and its

principles be adopted, it would then be necessary to resort to the State

of Maine for her assent in all proceedings relative to the matter, since

any arrangement under it can only be for a conventional line to which

she must be a party.

In conclusion, it was intimated to Mr. Fox that if a negotiation be

entertained by this Government at all upon the unsatisfactory basis

afforded by the British counter proposition or substitute, the President

will not invite it unless the authorities of the State of Maine shall

think it more likely to lead to an adjustment of the question of

boundary than the General Government deemed it to be, although

predisposed to see it in the most favorable light.

Your excellency will perceive that in the course of these proceedings,

but without abandoning the attempt to adjust the treaty line, steps

necessary, from the want of power in the Federal Government, of an

informal character, have been taken to test the dispositions of the

respective Governments upon the subject of substituting a conventional

for the treaty line. It will also be seen from the correspondence that

the British Government, despairing of a satisfactory adjustment of

the line of the treaty, avows its willingness to enter upon a direct

negotiation for the settlement of a conventional line if the assent

of the State of Maine to that course can be obtained.

Whilst the obligations of the Federal Government to do all in its power

to effect a settlement of this boundary are fully recognized on its

part, it has in the event of its being unable to do so specifically by

mutual consent no other means to accomplish the object amicably than by

another arbitration, or a commission, with an umpire, in the nature of

an arbitration. In the contingency of all other measures failing the

President will feel it to be his duty to submit another proposition to

the Government of Great Britain to refer the decision of the question to

a third party. He would not, however, be satisfied in taking this final

step without having first ascertained the opinion and wishes of the

State of Maine upon the subject of a negotiation for the establishment

of a conventional line, and he conceives the present the proper time

to seek it.

I am therefore directed by the President to invite your excellency to

adopt such measures as you may deem necessary to ascertain the sense

of the State of Maine with respect to the expediency of attempting to

establish a conventional line of boundary between that State and the

British possessions by direct negotiation between the Governments of

the United States and Great Britain, and whether the State of Maine

will agree, and upon what conditions, if she elects to prescribe any,

to abide by such settlement if the same be made. Should the State of

Maine be of opinion that additional surveys and explorations might

be useful either in leading to a satisfactory adjustment of the

controversy according to the terms of the treaty or in enabling the

parties to decide more understandingly upon the expediency of opening

a negotiation for the establishment of a line that would suit their

mutual convenience and be reconcilable to their conflicting interests,

and desire the creation for that purpose of a commission upon the

principles and with the limited powers described in the letter of

Mr. Fox, the President will without hesitation open a negotiation

with Great Britain for the accomplishment of that object.

I have the honor to be, with high consideration, your excellency's

obedient servant,

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