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