_Washington, March 25, 1840_.
HENRY S. FOX, Esq., etc.:
The undersigned, Secretary of State of the United States, acknowledges
to have received Mr. Fox's communication of the 13th instant, in
reference to the boundary negotiation and the affairs of the disputed
territory. The information given in the closing part of it--that a reply
to the last proposition of the United States upon the subject of the
boundary may be expected in a short time--is highly gratifying to the
President, who has, however, given directions to the undersigned, in
making this acknowledgment, to accompany it with the expression of his
profound regret that Mr. Fox's note is in no other respect satisfactory.
After the arrangements which in the beginning of last year were
entered into on the part of the two Governments with regard to the
occupation of the disputed territory, the President had indulged the
hope that the causes of irritation which had grown out of this branch
of the subject could have been removed. Relying on the disposition of
Maine to cooperate with the Federal Government in all that could lead
to a pacific adjustment of the principal question, the President felt
confident that his determination to maintain order and peace on the
border would be fully carried out. He looked upon all apprehensions of
designs by the people of Maine to take possession of the territory as
without adequate foundation, deeming it improbable that on the eve of
an amicable adjustment of the question any portion of the American
people would without cause and without object jeopard the success of
the negotiation and endanger the peace of the country. A troublesome,
irritating, and comparatively unimportant, because subordinate, subject
being thus disposed of, the President hoped that the parties would be
left free at once to discuss and finally adjust the principal question.
In this he has been disappointed. While the proceedings of Her Majesty's
Government at home have been attended with unlooked-for delays, its
attention has been diverted from the great subject in controversy by
repeated complaints imputing to a portion of the people of the United
States designs to violate the engagements of their Government--designs
which have never been entertained, and which Mr. Fox knows would receive
no countenance from this Government.
It is to be regretted that at this late hour so much misapprehension
still exists on the side of the British Government as to the object and
obvious meaning of the existing arrangements respecting the disputed
territory. The ill success which appears to have attended the efforts
made by the undersigned to convey through Mr. Fox to Her Majesty's
Government more correct impressions respecting them calls for a
recurrence to the subject, and a brief review of the correspondence
which has grown out of it may tend to remove the erroneous views which
prevail as to the manner in which the terms of the arrangements referred
to have been observed.
As Mr. Fox had no authority to make any agreement respecting the
exercise of jurisdiction over the disputed territory, that between him
and the undersigned of the 27th of February, 1839. had for its object
some provisional arrangement for the restoration and preservation of
peace in the territory. To accomplish this object it provided that Her
Majesty's officers should not seek to expel by military force the armed
party which had been sent by Maine into the district bordering on the
Restook River, and that, on the other hand, the government of Maine
would voluntarily and without needless delay withdraw beyond the bounds
of the disputed territory any armed force then within them. Besides
this, the arrangement had other objects--the dispersion of notorious
trespassers and the protection of public property from depredation.
In case future necessity should arise for this, the operation was to
be conducted by concert, jointly or separately, according to agreement
between the governments of Maine and New Brunswick.
In this last-mentioned respect the agreement looked to some further
arrangement between Maine and New Brunswick. Through the agency of
General Scott one was agreed to on the 23d and 25th of March following,
by which Sir John Harvey bound himself not to seek, without renewed
instructions to that effect from his Government, to take military
possession of the territory or to expel from it by military force
the armed civil posse or the troops of Maine. On the part of Maine
it was agreed by her governor that no attempt should be made, without
renewed instructions from the legislature, to disturb by arms the
Province of New Brunswick in the possession of the Madawaska settlements
or interrupt the usual communications between that and the upper
Provinces. As to possession and jurisdiction, they were to remain
unchanged--each party holding, in fact, possession of part of the
disputed territory, but each denying the right of the other to do so.
With that understanding Maine was without unnecessary delay to withdraw
her military force, leaving only, under a land agent, a small civil
posse, armed or unarmed, to protect the timber recently cut and to
prevent further depredations.
In the complaints of infractions of the agreements by the State of Maine
addressed to the undersigned Mr. Fox has assumed two positions which are
not authorized by the terms of those agreements: First. Admitting the
right of Maine to maintain a civil posse in the disputed territory for
the purposes stated in the agreement, he does so with the restriction
that the action of the posse was to be confined within certain limits;
and, second, by making the advance of the Maine posse into the valley of
the Upper St. John the ground of his complaint of encroachment upon the
Madawaska settlement, he assumes to extend the limits of that settlement
beyond those it occupied at the date of the agreement.
The United States can not acquiesce in either of these positions.
In the first place, nothing is found in the agreement subscribed to
by Governor Fairfield and Sir John Harvey defining any limits in the
disputed territory within which the operations of the civil posse of
Maine were to be circumscribed. The task of preserving the timber
recently cut and of preventing further depredations _within the disputed
territory_ was assigned to the State of Maine after her military force
should have been withdrawn from it, and it was to be accomplished by a
civil posse, armed or unarmed, which was to continue in the territory
and to operate in every part of it where its agency might be required
to protect the timber already cut and prevent further depredations,
without any limitation whatever or any restrictions except such as
might be construed into an attempt to disturb by arms the Province
of New Brunswick in her possession of the Madawaska settlement or
interrupt the usual communication between the Provinces.
It is thus, in the exercise of a legitimate right and in the
conscientious discharge of an obligation imposed upon her by a
solemn compact, that the State of Maine has done those acts which have
given rise to complaints for which no adequate cause is perceived.
The undersigned feels confident that when those acts shall have been
considered by Her Majesty's Government at home as explained in his note
to Mr. Fox of the 24th of December last and in connection with the
foregoing remarks they will no longer be viewed as calculated to excite
the apprehensions of Her Majesty's Government that the faith of existing
arrangements is to be broken on the part of the United States.
With regard to the second position assumed by Mr. Fox--that the advance
of the Maine posse along the valley of the Restook to the mouth of Fish
River and into the valley of the Upper St. John is at variance with the
terms and spirit of the agreements--the undersigned must observe that if
at variance with any of their provisions it could only be with those
which secure Her Majesty's Province of New Brunswick against any attempt
to disturb the possession of the Madawaska settlements and to interrupt
the usual communications between New Brunswick and the upper Provinces.
The agreement could only have reference to the Madawaska settlements as
confined within their actual limits at the time it was subscribed. The
undersigned in his note of the 24th of December last stated the reasons
why the mouth of Fish River and the portion of the valley of the St.
John through which it passes could in no proper sense be considered as
embraced in the Madawaska settlements. Were the United States to admit
the pretension set up on the part of Great Britain to give to the
Madawaska settlements a degree of constructive extension that might at
this time suit the purposes of Her Majesty's colonial authorities, those
settlements might soon be made with like justice to embrace any portions
of the disputed territory, and the right given to the Province of New
Brunswick to occupy them temporarily and for a special purpose might
by inference quite as plausible give the jurisdiction exercised by Her
Majesty's authorities an extent which would render the present state
of the question, so long as it could be maintained, equivalent to a
decision on the merits of the whole controversy in favor of Great
Britain. If the small settlement at Madawaska on the north side of the
St. John means the whole valley of that river, if a boom across the Fish
River and a station of a small posse on the south side of the St. John
at the mouth of Fish River is a disturbance of that settlement, which
is 25 miles below, within the meaning of the agreement, it is difficult
to conceive that there are any limitations to the pretensions of Her
Majesty's Government under it or how the State of Maine could exercise
the preventive power with regard to trespassers, which was on her part
the great object of the temporary arrangement. The movements of British
troops lately witnessed in the disputed territory and the erection
of military works for their protection and accommodation, of which
authentic information recently received at the Department of State has
been communicated to Mr. Fox, impart a still graver aspect to the matter
immediately under consideration. The fact of those military operations,
established beyond a doubt, left unexplained or unsatisfactorily
accounted for by Mr. Fox's note of the 7th instant, continues an
abiding cause of complaint on the part of the United States against
Her Majesty's colonial agents as inconsistent with arrangements whose
main object was to divest a question already sufficiently perplexed
and complicated from such embarrassments as those with which the
proceedings of the British authorities can not fail to surround it.
If, as Mr. Fox must admit, the objects of the late agreements were the
removal of all military force and the preservation of the property from
further spoliations, leaving the possession and jurisdiction as they
stood before the State of Maine found itself compelled to act against
the trespassers, the President can not but consider that the conduct of
the American local authorities strongly and most favorably contrasts
with that of the colonial authorities of Her Majesty's Government. While
the one, promptly withdrawing its military force, has confined itself to
the use of the small posse, armed as agreed upon, and has done no act
not necessary to the accomplishment of the conventional objects, every
measure taken or indicated by the other party is essentially military in
its character, and can be justified only by a well-founded apprehension
that hostilities must ensue.
With such feelings and convictions the President could not see without
painful surprise the attempt of Mr. Fox, under instructions from his
Government, to give to the existing state of things a character not
warranted by the friendly disposition of the United States or the
conduct of the authorities and people of Maine; much more is he
surprised to find it alleged as a ground for strengthening a military
force and preparing for a hostile collision with the unarmed inhabitants
of a friendly State, pursuing within their own borders their peaceful
occupations or exerting themselves in compliance with their agreements
to protect the property in dispute from unauthorized spoliation.
The President wishes that he could dispel the fear that these dark
forebodings can be realized. Unless Her Majesty's Government shall
forthwith arrest all military interference in the question, unless it
shall apply to the subject more determined efforts than have hitherto
been made to bring the dispute to a certain and pacific adjustment, the
misfortunes predicted by Mr. Fox in the name of his Government may most
unfortunately happen.
But no apprehension of the consequences alluded to by Mr. Fox can
be permitted to divert the Government and people of the United States
from the performance of their duty to the State of Maine. That duty is
as simple as it is imperative. The construction which is given by her
to the treaty of 1783 has been again and again, and in the most solemn
manner, asserted also by the Federal Government, and must be maintained
unless Maine freely consents to a new boundary or unless that
construction of the treaty is found to be erroneous by the decision of
a disinterested and independent tribunal selected by the parties for its
final adjustment. The President on assuming the duties of his station
avowed his determination, all other means of negotiation failing, to
submit a proposition to the Government of Great Britain to refer the
decision of the question once more to a third party.
In all the subsequent steps which have been taken upon the subject by
his direction he has been actuated by the same spirit. Neither his
dispositions in the matter nor his opinion as to the propriety of that
course has undergone any change. Should the fulfillment of his wishes
be defeated, either by an unwillingness on the part of Her Majesty's
Government to meet the offer of the United States in the spirit in
which it is made or from adverse circumstances of any description,
the President will in any event derive great satisfaction from the
consciousness that no effort on his part has been spared to bring the
question to an amicable conclusion, and that there has been nothing in
the conduct either of the Governments and people of the United States or
of the State of Maine to justify the employment of Her Majesty's forces
as indicated by Mr. Fox's letter. The President can not under such
circumstances apprehend that the responsibility for any consequences
which may unhappily ensue will by the just judgment of an impartial
world be imputed to the United States.
The undersigned avails himself, etc.