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of the treaty of 1783, it would be necessary to adopt the opinion express-
ed on these seven ijuestions, as a ground-work for further proceedings.

Without here attemping a more particular reference to other remarks
of Sir Charles R. Vaughan, the undersigned will proceed with his ob-
servations in reply ; not doubting that, in these, a satisfactory answer to
the entire scope of Sir Charles R. VaugJian's note will be ])erceived.

The undersigned is constrained to express his regret that it should still
be considered hy his INIajesty's Government that any part of the opinion
of the arbiter is obligatory upon either party ; but he does not deem it
necessary or useful, at present, to enter at large into the discussion of
that point. From the nature of the opinions expressed by the arbiter,
his recommendations could not have been carried into effect by the
President without the concurrence of the Senate ; and that body, con-
siderhig those opinions not only as not determining the great and sub-
stantial 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 advising the
President to execute the measures recommended by the arbiter ; but, on
the contrary, did advise him to open a new negotiation with his Britan-
nic Majesty's Government for the ascertainment of the boundary betAveen
the possessions of the United States and those of the King of Great Britain,
on the Northeastern frontier of the United States, according to the treaty
of 1783.

The proposition submitted by Mr. Livingston, in his letter of the 30th
April, proceeds upon this basis, in the hope that, if embraced, it will re-
move the principal difliculty which prevented the arbiter from attaining
the object of the reference.

The undersigned is constrained to observe, however, that he cannot
admit that even 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, is binding upon either party in any future
attempt to adjust that which the arbiter failed to settle.

Now, the main object of the stipulation in the fifth article of the treaty
of Ghent, of the commission raised under that article, and of the refer-
ence to the King of the Netherlands, was the ascertahiment of the North-
eastern boundary, along its entire line, according to the treaty of 1783,
and which had remained unascertained since that period. It is true that,
in the ascertainment of this boundary, many points, as is most generally
the case in disputed questions of location, were involved ; and that each of
those may be admitted to be necessary to the discovery of the true bound-
ary throughout the whole line; but when tlie arbiter felt himself unable
to decide more than one, or at most two, of these points, he was in fact
little nearer the accomplishment of the great and real object of the refer-
ence, or of the objects of the treaty of 1783, and that of Ghent, than if he had
left each point undetermined. The most material point hi the line of the true



220 [ Senate Doc. No. 414. j

boundary, both as it respects the difficulty of the subject and the extent
of the territory and dominions of the respective Governments, lie confessed-
ly not only failed to decide, but acknowledged his inability to decide; there-
by imposing: upon both Governments, and especially that of the United
States, owing to the peculiar structure of its institutions, the unavoidable
necessity of resorting to further negotiation and other means to ascertain
the real boundary of the treaty of 17S3 ; and, as a necessary consequence,
each party was absolved from any obligation to adopt his recommenda-
tions.

Not only has the arbiter not decided all the points necessary to be
ascertauied for the purpose of establishing the true boundary of the treaty
of 17S3, but the vital and most material point — that, Avithout which no
step can be taken in fixing the boundary and running the line stipulated
by the treaty of 1783 — he lias undeniably left vmdecided : whereby the
great objects, both of the treaties and of the convention of reference, have
been defeated.

Nor can the nndersigned admit that, of the three main points of differ-
ence referred to the arbiter as necessary to ascertain the boundary of the
treaty of 17S3, he has decided two, as is supposed by his Majesty's Gov-
ernment. On the first point, it is not contended that the arbiter made a
decision, or that he Ibund either the angle or the highlands called for by
the treaty of 1783 ; but it is, on the contrary, clear that, so far from deciding
that point, or finding those places, he merely expressed an opinion of
what would be suitable for the parties to adopt, in lieu of the line of the
treat V ; and it appears to the undersigned equally clear, that, in relation to
tho tiiird point, liis opinion is expressed in no more positive language, and
with no nearer an approach to a decision. On this point he expresses an
oi)inion merely, that it will be suitable to proceed to fresh operations to
measure the observed latitude, but in such manner that the fort at Rouse's
point shall be included in the territory of the United States.

The undersigned is aware, however, if the proposition made by Mr.
Livingston should be accorded to by his Majesty's Government, and
the commission hereafter to be appointed should result, as the undersigned
believes it will, in ascertaining the true situation of the boundary called
for by the treaty of 17S3, that it would be afterwards necessary, in order
to ascertain the true line of boundary, to settle the other two points, ac-
cording to which it is to be traced. And as the proposition contained in
Mr. Livingston's letter does not apply to either of these points, the Presi-
dent is sensible that some understanding upon them will be proper to the
attninmniit of the great object he is framing.

The l^resident has, therefore, directed the undersigned to say that, if the
proposition he has raused to b<^ made be accorded to by his Majesty's
Govcrmntoit, notwithstanding that he does not admit the obligatory effect
of the decision, or rather the opinion, of the arbiter on the point, he is
willing to take tlu^ stream situated farthest to tjie northwest among those
which fall into the northernmost of the three lakes, the last of which bears
the name of ComiPftimt lake, as the northwesternmost head of the Con-
necticut river, arcordiu!? to the treaty of 17S3,

As it rcsitcfts tin- third point reft-rred to the arbiter, but u]ion which he
failed to deride. Sir Charles R. Vaiighan is doubtless aware that, as early
as the year 1771 and 177^% the line of boundary involved in it was sur-
veyed and marked along the 45th parallel of north latitude, from the cast



[ Senate Doc. No. 414. ] 221

side of lake Champlaiii to the river Connecticut, by Thomas Valentine,
deputy surveyor on the part of tlie Province of !^o\v York, and by John
ColHns, deputy surveyor of the Province of Quebec ; that, since tliat period,
grants of land have been made by the respective Governments on botii
sides up to this line; that settlements have been formed, that towns have
risen up, and that jurisdiction has been exercised by tlie two Governments
up to this line, on either side. These facts are certainly cogent proofs that
this line is the true boundary according to the treaty of 17Sj ; and it ap-
pears to the President that, regarding the preservation of the }>opulation on
botli sides, their habits, and settlements, this third point might be disposed
of with mutual satisfaction to both nations, and in strict conformity with
the treaty of 1783, by adopting the line as surveyed and marked by
Thomas V^alentine and John CoKins, in 1771 and 1772; and he will ac-
cordingly agree, if his proposition as to the first point be embraced, to
adopt this line.

An acquiescence by the United States in the opinions which it is sup-
posed by his Majesty's Government have been pronounced by the arbiter
in the course of his reasoning upon the first point submitted to liim, is liable
not only to the objections already stated, but to others, which the under-
signed is constrained, by the spirit of frankness in which the proposition
directed by the President has been presented, to inform Sir Charles R.
Vaughan are insuperable.

It is in the first place to bs observed, that the matters to Avhich the arbi-
ter's opinions, mentioned by Sir Charles R. Vaughan, relate, although
subjects on which the two parties may have entertained dilferent views,
were subordinate, merely, to the point in dispute submitted to the arbiter;
and were used by the parties in illustration of their pretensions, and as
affording grounds to sustain their respective positions on the real point in
dispute. The views expressed by the arbiter on these matters cannot be
regarded as decisions within tlie meaning of the reference, but rather as
postulates or premises by which, in the course of his reasoning, he arrived
at the opinion expressed in regard to the point submitted for his decision:
and it therefore follows, that the acquiescence on the part of the United
States, as required by Great Britain, would be to reject as erroneous the
conclusion of the arbiter, and at the same time adopt the premises and
reasoning by which he reached it.

It must also be remarked, that these seven postulates or premises se-
lected by his Majesty's Government as necessary to be considered by the
United States, are but part of those on which the arbiter, in the course of
his reasoning, was equally explicit in the expression of his views, and that
on others, his reasoning may be considered as being more favorable to the
pretensions of the United States ; and no reason is perceived, therefore,
why an acquiescence in the opinions of the arbiter upon these, should not
equally apply to all the premises by him assumed, and be binding upon
both Governments.

The undersigned is persuaded, however, that there is no obligation
upon either party to acquiesce in the opinion of the arbiter on any of the
matters involved in his premises, and that to do so would defeat the end
of the present negotiation.

It appears to be conceded that, upon this first and most material point,
the arbiter has not made his decision in such manner as to be binding
upon either of the parties ; and if, in consequence of this fact, no cbliga-



2 22 [ Senate Doc. No. 414. ]

tion can arise to acquiesce in his opinion upon the main point he was
called upon to decide, certainly there can be no greater obligation to
yield, not to his decisions, but to his opinions, upon matters subordinate

merclv.

Tlie stipulations in tlie treaty of Ghent require the ascertainment and
dctenninaiion of those parts of the boundary designated in the treaty of
peace ol 17S3, therein mentioned ; and the three points of diflerence be-
tween the commissioners appointed according to the former treaty, were
referred to the decision of the arbiter : of these, the most material point is
that of the highlands, to which the proposition directed by the President
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 that empty
themselves into the river St. Lawrence from those which fall into the At-
lantic ocean.

Now, should it he even admitted that, in rcUuion to some of the matters
subordinate to tliis material point submitted to him, the arbiter may have
expressed his opinions, yet it is obvious that the result of his reasonhig
and of those opinions upon his premises taken together, instead of leading
to the determination he was called upon to make, necessarily conducted
him to the conclusion that neither of the boundaries claimed by the re-
spective parties is the true line, and that he himself could not ascertain
and determine which the true line, according to the treaty, is. His prem-
ises and reasoning, therefore, ended in satisfying the judgment of the
arbiter that it was^impossible for him to decide the great point submitted
to him ; but, instead of reviewing his course of reasoning, (which, for the
cause already stated, there was good ground to distrust, and, in the opinion
of the undersigned, wholly to reject, inasmuch as to admit its accuracy
would be subversive of tlie objects and stipulations both of the treaty of
1783 and of that of Ghent ;) and, instead of proceeding by other means to
ascertain and determine tlic true line, he recommended a new line, con-
fessedly different from that called for by the treaty of 17S3, answering
in no particular the words of that treaty, and which could only be estab-
lished by a convention between the two Governments.

But this recommendation the Government of the United States could
not adopt, nor, without the consent of the State of Maine, agree upon a
new and conventional line dilTerent from that required by the treaty of
peace. The resolution of the Senate, pursuant to which the present ne-
gotiation has ha[)pily been renewed, proposes to ascertain the boimdary
according to the treaty of 1783 ; and, for this purpose, by whatever means
it may be ascertained, the authority of the Government of the United
States is complete, without the co-operation of the State of Maine.

Now, It nuist be admitted that the arbiter precluded liimself from attain-
in'^ this o\)\vci by liis reasoning on the suluirdinate matters already men-
liolicd, aiui by filling alterwards to adoj)! other means, not only allowable
but usual in su<h cases.

In all questions of boundaries of tracts and countries designated by nat-
ural objects, the plain and universal rule of surveying is, first, to find the
natural object, and then to reach it by the nearest direct course from any
given {)oint, and with the least possible departure from the particular
course call<Mt for in the original deed or treaty. The obstacles by which
the coinmissioners, in the first instance, and the arbiter, afterwards, were
prevented from ascerUiining the boundary ujjou the first point of differ-



[ Senate Doc. No. 414. | 223

ence, was the supposed impossibility of finding such highlands, answer-
ing the description of the treaty of 1783, as conld be reached by a line
drawn due north from the monument ; Avhcreas, had cither first found the
highlands called for by the treaty, and afterwards, in conformity with the
rule already adverted to, traced the line from the monument to such higii-
lands, in the manner above indicated, it is beheved the true line of the
treaty could have been ascertained. Here, then, is one plain and usual
means l)y which this difficult question may be settled, but which has not
yet been resorted to in the previous eftbrts of the parties to adjust it.

This means the proposition submitted by the President proposes to em-
ploy, and in the manner particularly referred to in the letters wliich have
been heretofore addressed by the Secretary of State to Sir Charles R.
Vaughan.

Now, the proposition of tlie President is, to find the highlands answer-
ing the description of those called for by the treaty of 17S3, and to them
from the monument to run a direct line ; and the President does not doubt
that, with the aid of more accurate surveys, by skilful persons, on the
ground, and freed from the restraint liitherto imposed by a due north line,
such highlands may be found ; and which either the commissioners or the
arbiter might have found had they adopted the rule now proposed.

But the British Government asks the United States, as a preliminary
concession, to acquiesce in the opinion of the arbiter upon certain subor-
dinate facts, being seven in number, by which, obviously, he was pre-
vented from finding that which it is tlie object of the President now to
discover.

The undersigned is persuaded that Sir Charles R. Vaughan will admit
that the concession of these opinions would, in effect, defeat the sole ob-
ject, not only of the proposition, but of the negotiation at present renewed ;
i. e. the ascertainment and determination of the boundary according to
the treaty of 1783.

By the opinion of the arbiter in relation to these subordinate matters,
he reached the conclusion that the discovery of the line of 17S3 was im-
practicable, and that the question could only be settled by a conventional
line ; and, therefore, the acquiescence of the United States in the same
opinions, would, in limine, confine the negotiation to a conventional line,
to which, in the present state of the controversy, they have no authority
to agree.

To insist upon such concession would not merely defeat the object of
the negotiation, but would be an unnecessary departure from the terms
I and stipulations of previous treaties.

The clear object of the treaty of Ghent is to ascertain the boundary
designated by the treat}'- of 1783 ; and that object it should be the mutual

J desire of the two Governments to accomplish, by all the means at their
command. Although the efforts already made for that purpose have
proved unsuccessful, neither party should be deterred (seeing how deeply
the subject affects their amicable relations) from resorting to others more
promising in their nature, but which, on previous occasions, have been
overlooked.

' If, after a resort to the plain and universal rule now recommended, it
should be found impracticable to trace the boundary according; to the
"treaty of 1783, it would be time enough, and might tlicn be desirable, to
enter upon a negotiation for terminating the difficulty by the adoption of
a conventional line satisfactory to both parties.



224 [ Senate Doc. No. 41 J. ]

This mode, however, could only be adopted with the special assent of
the State ot Maine ; and it is believed that the probability of such assent,
ill the present state of the negotiation — while, on the part of the authori-
ties of that State, no doubt is entertained of the practicability of ascertain-
ing the true line, and while so mucli confidLiice is felt in the means now
proposed — is too remote to justify any attempt to procure it.

It would also be impossible to reconcile the people of that State to the
result of any negotiation in which should be at once conceded those points
respecting which, in the course of his reasoning, it is supposed the arbiter
committed the most serious error, and by which he was prevented from
coming to a decision by which both parties would have been bound.

The proposition directed by the President, therefore, is, to submit the
whole subject, so far as it relates to this fa-st point of difference, to the com-
mission mentioned in the letter of Mr. Livingston of 30th April, and clothed
with the same powers as belonged to the commissioners under the treaty
of Ghent and to the arbiter ; in order that, instructed by the introduction of
the rule now explained, and not adopted by their predecessors, they may
have greater means for a satisfactory discharge of their duties.

For a successful termination of the labors of the commission to be in-
stituted under this proposition, an unlimited discretion over all the points
necessary to a proper decision of the subject connnitted to it is indispen-
sably necessary; and it must be obvious that, if the new commissioners
should be restricted to the reasoning of the arbiter, either in its premises
or conclusions, the only object of their appointment would necessarily be
defeated.

The undersigned believes that, in the foregoing observations, it will be
found that a sufficient answer has already been given to the suggestion of
Su: Charles R. Vaughan, that the objeclion to the power of tiie Govern-
ment of the United States to adopt the line recommended by the King of
the Netherlands, will be equally fatal to that suggested by Mr. Livingston.
It may not be improper, however, further to observe, that the objection
arises from the want of authority in the General Government to adopt a
line confessedly dilferent from that called for by the treaty of 1783 ; but
their authority to ascertain that line being unquestionable, their power to
employ all the legal and usual means for its ascertahmient is equally clear.
It is with this view that the proposition presented by the President pro-
poses to conform the course to the natural object, whereby the true line of
the treaty would be legitimately ascertained.

On the whole, tlie undersigned persuades himself that his Majesty's
Government will be dis])oscd to co-o])erate with the President in another
effort for the adjustment of this important subject, and not be deterred
from em])raciug the means now proposed, from an ajiprehension of diffi-
culties which, it is confidently believed, are not likely to occur.

The undersigned avails himself of the occasion to renew to Sir Charles
R. Vaughau tjje assurance of his distinguished consideration.

LOUIS McLANE.



Sir Charles li. Vaughan to Mr. McLanc.

Washington, March IG, 183^.
Tlie mider.signed lias the honor to inlbrm Mr. McLane (hat he ha .
transmitted to his Majesty's Goveniracnt a copy of the note received from



[ Senate Doc. No. 414. ] 225

him, dated the lltli instant, in answer to tlic ])n)posal made by the British
Government to tlie Government of the United States, that both parties
should agree to acquiesce in certain points decided by Ihe arbiter, which
might facihtate the settlement of the Norllieastern boundary of the United
States.

Tiie undersigned begs permission to call the attention of the Secretary
of State of the United States to some observations which he wishes to make
upon the objections which are said to be insn])erab!e, on the part of .the
United States, to an acquiescence in the points wiiich lie has hud the honor,
according to his instructions, to submit to the American Government.

The adoption of the views of the British Government by the Govern-
ment of the United States, was meant to be the groundwork of future pro-
ceedings; whether those proceedings were to be directed to another attempt
to trace the boundary by a fresh survey of the country, as proposed by the
United States, or to a division of the territory de])ending upon a conven-
tional line.

The undersigned finds that, in the note of Mr. McLane, there is a posi-
tive objection, on the part of the United States, to consider any point of
the controversy, as decided by the arbiter, to be binding upon the Amer-
ican Government ; that to agree in the seven points enumerated by the
British Government, would be to acquiesce in the premises by which the
arbiter has arrived at a conclusion already rejected by the Senate.

The arbitration of the King of the Netherlands was invited and accepted
in the following general terms: "That his Majesty would be pleased to
take upon himself the arbitration of the differences between the two coun-
tries." The opinion of the arbiter was asked in the statements of the re-
spective parties, not upon a question involving the whole continuous line
of boundary, but upon three separate and distinct points, which were spe-
cified. The first of these main points could not be entirely decided by the
arbiter; but he decided seven subordinate points growing out of it, in
which the United States have been asked to acquiesce, as preliminary ta
any further proceedings. '

The undersigned has already had the honor to state, in a former note,
that the British Government does not conceive that the decision of the
arbiter is invalidated, and ought to be set aside entirely, because it has
failed to decide one of the three distinct points submitted to him.

Mr. McLane does not admit that the arbiter has deci(]ed, as the Brit-
ish Government asserts, two out of the three main points submitted for
his decision. In the opinion of the undersigned, he has clearly decided
what ought to be considered as the northwesternmost head of the Con-
necticut river ; but, according to Mr. McLane 's note, the Government of
the United States will only admit it conditionally.

With regard to the third separate and distinct point submitted by the
respective parties, the tracing the boundary line along the 45th degree of
latitude, in the American statement, '• the question referred is, whether,
under the treaties of 1783 and of Ghent, the old line may be continued
to be considered as the boundary of the United States, or whether this
shall be surveyed anew, in conformity with the late observations of lati-



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 29 of 56)