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tude."

The arbiter decided strictly according to the terms in which the ques-
tion was put to him in the American statement : tliat it would be right to
proceed to fresh operations to measure the observed latitude.
16



216 [ Senate Doc. No. 114. ]

This dt'cisiou was acconiiJuiiied with n recommendation that Rouse's
point, to which the United States had ahandoned all claim, should he re-
stored to them. The undersigned has had the honor to declare the wil-
lingness oltlie British Government to grant that cession, as a part of the
j)reliniiMary points to be agreed upon. l)y hotli parties belbrc they proceed
to luitlier negotiation.

Without any consideration ol'the cession oi'this point by his Majesty's
Government, Mr. McLanc proposes to dispose of this tiiird point, (the
line of boundary on the 45th degree of latitude,) by both parties agree-
in? to adopt the old line surveyed by Valentine and Collins previously to
1774. It appears, on a reference to the statement delivered to the King
of the Netherlands, that both parties suspected the survey of Valentine
and Collins of great inaccuracy ; and the only motive for retahiing it can
be, that some American citizens may have made settlements upon some
nine miles of territory which a new survey might throw into the posses-
sion of Great Britain.

The undersigned cannot agree with Mr. McLane that the acquiescence
of the United States in the seven subordinate points lately submitted by
his Majesty's Government, would confine the negotiation " in limine^' to
a conventional line, to which the President has no authority to agree ;
and, notw^ithstanding the unlimited discretion which the' Secretary of State
proposes to give to the conmiissioners to be appointed according to Mr.
Livingston's proposal, not a step can they take unless the two Govern-
ments agree upon two of the seven subordinate points which the under-
signed has enumerated in a former note — the character of the land they
are to discover as dividing waters according to the treaty of 17S3, and
what are to be considered as Atlantic rivers.

Wliatever may be the reluctance of the United States to consider the
decision of the arbiter upon any separate point as binding upon either
party, because he failed to discover the line of boundary so defectively
described in the treaty, yet we cannot but agree that, in all points de-
cided, we have (in the language of the report of the Senate) the impartial
opinion of a disinterested judge selected by both parties to settle a ques-
tion of great perplexity.

In answer to the observation of Mr. McLane, that, on many points, the
reasoning of the arbiter has been more favorable to the United States
than to Great Britain, and that, therefore, acquiescence should equally
apply to all the premises assumed ; the undersigned has only to require
that they should be stated, as he is confident that, if acquiescence in them
can facilitate, in any shape, the object which now occupies both Govern-
ments, (the devising means of settling the boundary,) they will meet with
the most favored consideration.

From a review of the correspondence which the undersigned has had
the honor to carry on with the Secretary of State, it results that there is a
decided determination, on the j)art of the Government of the United States,
not to abandon the task, Avhich seems to be lio])eless to the BritLsh Gov-
ernment, of tracing the boundary according to the defective descri])tion of
it in the treaty of^ 1783.

By the 7th article of the convention of arbitration, it was agreed "tliat
the decision of the nrhiter, when given, shall be taken as final and con-
clusive; and it shall be carried, without reserve, into innnediate elfect, by
commissioners apj)ointed for that jjurpose by the contracting parlies."



[ Senate Doc. No. llJ. J 227

Grfat Britain, in fullilmont of the oblii^Mtions contracted under that
article of the convention, announced to the Unitiid States her wilHngncss
to abide by the award of the arbiter.

It is not for tiie undersigned to decide liow far thi- Ihitisli Government
was entitled to insist uj)on tlie question oi' boundary having been finally
settled by the decision of the King of the Netherlands. The Senate of the
United States, accordnig to tlie statement of- the proceedings given in the
8lh volume of Congressional Debates, decided, by a mojority of only one
vote, (the numbers being 21 to 20,) to decline to ado])t the boundary recom-
mended by the King of the Netherlands; and, by a similar majority, (the
numbers being 2.3 to 22,) the Senate decided to advise the President to
open a new negotiation with his Britannic Majesty.

When the undersigned finds so important a measure defeated by a bare
majority; when a majority of one only decided the Senate to advise the
opening of a new negotiation; when that negotiation was restricted to
one inadmissible basis, and accompanied with new pretensions, which the
British Government could not consent to entertain in connexion with the
boundary question; when the plan proposed by the United States for
anotliL'r attempt to trace the boundary of the treaty is so complicated; and
when the points proposed by the British Government are rejected, which
were to render that plan more practicable, it is a subject of sincere regret
that the award of the arbiter was set aside, which, by conferrir)g upon the
United States three-fifths of the disputed territory, together with Rouse's
point, made a much greater concession than is ever likely to be obtained
by a prolonged negotiation. But it is alleged that an insuperable constitu-
tional difficulty occasioned the rejection of the award; and, therefore. Great
Britain is under the necessity of ascertaining, previously to any further
proceedings, how far the General Government has the power to carry into
effect any arrangement which may be the result of a renewed negotiation.
The answer of Mr. McLane upon that point is 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
to them from the monument at the source of the St. Croix riv(!r will be
such a fulfilment of the terms of that treaty as the President can agree to
make it the boundary, without reference to the State of Maine.

The undersigned trusts that Mr. McLane will receive the observations
wliich he has thought it his duty to make upon his note of 11th March,
in the same spirit of c'onciliation which has marked hitherto the corre-
spondence between the two Governments on the question of boundary.

The undersigned has the honor to renew to Mr. McLane the assurance
of his most distinguished consideration.

CHAS. R. VAUGHAN.

Hon. Louis McLane, ^-c.



Mr. McLane to Sir Charles R. Vavghan.
Department of State,

Washington, March 21, 1834.
The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of the note of Sir Charles R. Vaughan,



22S [ Senate Doc. No. 414 ]

envoy exlraordinary and minister plenipotL'utiary of his liritannic Ma-
jesty,' ol" the Itith instant, in answer to that of the undersigned of the 11th
instant, relative to the j)ropo<ition suhmitted hy direction of tlie President
for the adjustment of the Northcasiern boundary ; and the undersigned
has also lo exju'ess his regret that the subject has not presented itself to
Sir Charl 's in the hght in whicli he had entertained the liope it would be
viewed.

As Sir Charles R. Vaughan has transmitted for the consideration of his
Government the note of the undersigned, no necessity is perceived for any
otlier observations at present upon the remarks of Sir Charles, than such
as may bo proper to correct some misapprehensions into which Sir Charles
appears to have fallen, as well in regard to the proceedings in the Senate
of the United States, as to the character of the proposition submitted by
the President ; which apprehensions, should they also be entertained by
his Majesty's Government, might have an injurious inlluence on its de-
liberations upon a subject so important to the amicable relations between
the two Governments.

The undersigned is the more encouraged to make this reply, by the
persuasion that, from the spirit in wliich Sir Ciiarles R. Vaughan has
made his observations, he will be ready promptly to correct any error into
which, by not snlticiently adverting to the peculiar structm-e of tl.'e insti-
tutions of tlie United States, he may unintentionally have been led.

Although Sir Charles R. Vaughan is correct hi his statement, numeri-
cally, of the votes in the Senate, in the two histances which he has speci-
fied, he has not adverted to otiicr instances in the course of the same pro-
ceedin2:s, of a far more important and pertinent bearing ; and of tiiose
which he has specified, he has entirely misconceived their bearing and
constitutional etiect : hence, lie is especially inistakim in inferring, and,
indeed, stating, "•that so important a measure was defeated by a bare ma-
jority, when a majority of one only decided the Senate to advise the
opening of a new negotiation." This inference of Sir Charles arises from
his statement, "that the Senate of the United States decided by a majori-
ty of only one vole, (the numbers being 21 to 20,) to decline to adopt the
boundary recommended by the King of the Netherlands; and by a simi-
lar inajcjrity, (the numbers being 23 to 22,) the Senate decided to advise the
President to open a new negotiation wUh his Britannic Majesty.'"

Now, the misapprehension into which Sir Charles has fallen is two-
fold: 1st, in not properly considering the constitutional action of the Sen-
ate over such subjects, and in supposing that in any vote of that body
any mimbcr of its members, wilhin not one or two, but even twenty-three
of "a majority, were in favor of ado]»ting the award; and, 2d, in consider-
ing the; vote of the Senate upon a question wholly distinct and separate in
all respects, as indicative of the opinion of the Senate in regard to the
effect of the award.

The undersi^Mied has already informed Sir Charles R. Vaughan '-that,
from the nature of the oj)iiiions expressed by the arbiter, his recommend-
ations could not have been carried into efl'ect by the President, without
the consent of the Senate ;" an<l it is projjer now to observe, that such
consent ran only be constitutionally given, "j»rovid<xl two-thirds of the
Senators present concur." Now, in the first iiistancc winch Sir Charles
has sj)ecifi(ul, the number of Senators present was 41, of which iium1)cr
two-thirrls could not be less tiian 2t?; and, therefore, if Sir Charles were



[ Senate Doc. No. ill. ] 229

correct in supposing the vote in this instance as applying to the validity
of the award, and the twenty Senaldrs voting in the negative npon that
occasion to he favorable to its adoption, still the nnmher wonid lie short,
not one only, Init eight, of the constitutional luiniher of two-thirds.

It is obvious, however, from the proce(!(lings to wiiich Sir Charles has
referred, that the vote in this instance had no direct ap[)lication to the
validity of the award, and allbrds no proper indication of the opinion of
the minority of twenty upon that point. The President could not exe-
cute ihe award without the consent of the Senate, two-thirds of the
members present concurring ; but this consent must be positively declared,
and a failure or omission so to declare it is tantamount to a rejection. A
proposition invitmg or requiring such assent is also of an adirmative
character, and the sense or action of the Senate in regard to it ought
regularly to be atlirmatively manifested. Now, the committee to whom
the President's message was referred, and to whose report Sir Charles
has alluded, expressed the opinion that, in this case, the United States
are not bound by the award, as such, though on grounds of exjiediency
a majority of the committee was favorable to its adoption ; and, therefore,
they recommend a positive and affirmative resolution, thist the Senate ad-
vise tlie President to express to his Majesty the King of the Netherlands
the assent of the United States to the determination made by him, and
consent to the execution of the same. This resolution presented the
usual and only proper mode of ascertaining, constitutionally, whether the
Senate would consent to the execution of the award; and, upon a motion
to strike out tliat part of the resolution expressive of the consent of the
Senate, the vote sto(jd 35 to 8 — eight only concurring in consenting to
the execution of the award. Of these eight, it is certain that three were
of the same majority of the committee whose report has been adverted
to, who pronounced the award not binding upon the United States; and
whether the remaining: five supported the resolution from a belief that the
award was binding, or concurred with the majority of the committee in
their views of expediency merely, it is impossible to say, and it is not
material to inquire. It ma^^, therefore, be safely affirmed, that in this
vote is to be found the fact that, of the forty-three members of the Sen-
ate present, eight only would consent to the execution of the award by
the President ; and from the further proceedings of the Senate alluded
to by Sir Charles, nothing more is to be inferred than advice upon the
part of certain members to assign the ground for their refusal to concur,
and which might not have operated with others. These positions derive
conclusive confirmation from the vote of the Senate in a subsequent part
of their proceedings, upon tlie amendment offered by a Senator from
Kentucky to a resolution submitted by a Senator from Maine ; the latter
resolving that the Senate do not advise a submission to the opinion of the
arbiter; and the amendment proposing to insert, in lieu thereof, an affirm-
ative resolution, "that, in the opinion of the Senate, good faith and soimd
policy require the execution of the award." Of the forty-two members
of the S:nate then present, eight only supported the amendm^'nt, and thir-
(y-four opposed it; whereby the negative proposition of the Senator from
Maine, in hself unusual, became more obviously unnecessary, and was
for that reason, as it may be presumed, withdrawn.

Now, does not Sir Charles perceive, from the result of all these proceed-
ings, that the Senate not only failed, but, by two repeated votes of 35



230 [ Senate Doc. No. ll4. ]

and 34 to 8, rofusLd to consent to the execution of the award, and, by ne-
cessary iniphcation, denied its binding erf'ect upon tlie United States ?

The etiect, then, ot" this refusal of the Senate to consent to the execu-
tion of the award, put it out of tlie power of the President to execute it;
and the further effect, as stated in the letter of Mr. Livingston of the
30lli April, 1833, was to leave the high parties to the submission precise-
ly in the situation in which they were prior to the selection of the arbiter.

In this posture of the affair, so far as it regards the award, no further
action by the Senate could be expected or hoped for ; and, so far as re-
gards the preliminary steps in any future negotiation for the adjustment
of this important subject, was not required. The high duty was there-
fore once more devolved upon the President of exerting his executive
power under the constitution to select a new arbiter, or to devise other
means, more practicable in their nature, and more likely to obtain the ob-
jects of both the high ])arties. The first was deemed altogether useless,
from the position assumed by the Government of his Britannic Majesty,
as stated in Mr. Livingston's letter already alluded to ; and, therefore, it
only remained for the President to resort to other means, less objectiona-
ble, to obtam the objects of the treaty of Ghent, which required the
ascertaiimient of the line of boundary of the treaty of 1783. It has been
already observed that the authority of the President for this purpose ex-
isted in virtue of his executive power under the constitution, and inde-
pendently of the prelimmary action of the Senate; but neither the
President nor the Senate, nor both united, had authority, without the as-
sent of the State of Maine, to agree upon a new and conventional line.

Now, it is clear that, in the second instance of the vote in the Senate
to which Sir Charles R. Vaughan has referred, the advice given by that
body had no relation whatever to the opinion of the arbiter ; but, on the
contrary, as the Senate had previously refused to concur in consenting to
the adoption of the award, suggested only that course which, in the opin-
ion of the majority, it would be expedient for the President, under the
circumstances, to pursue. And if it were proper (which, in the opinion
of the undersigned, it is not) to enter into any speculation of the reasons
by which the minority of twenty-two, on that occasion, were influenced in
refusing to give any advice to the President, they might well be supposed
to arise either from such advice being unnecessary, or, perhaps, a dispo-
sition with some to insist upon the strict pretensions upon the part of the
United States, without fin'tlier negotiation. But, however unnecessary
such advici! might be, it nevcntheless manifested that, in the opinion of
twenty-three members of the Senate — not only deserving, but, from the
co-ordinate authority of that branch of the executive power in any ulti-
mate arrangement of the subject, commanding, the highest respect — it was
yet practicable to ascertain the line of boundary ticcording to the treaty
of 1783, and that it was advisable that the President should enter upon a
new nejiotiation for that object. Tliis resolution, tlvrefore, did not deteat
"so imporlant a measin-c," to wit, the ad()j)tion of tiie line recommended
by the arbiter, which, as has been shown, was defeated before ; though it
may be admitted to iiave restricted, for the present at least, tlie general
discretion of the President in iiis further efforts to arrange the ditiiculties
to a negotiation to fix the boundary according 'to the line of 1783. And
it camiot be too often re|)i'atc(l, or too forcibly impressed upon the mind
of Sir Charles R. V^aui,'han,an(l upon the consideration of his Government,



[ Senate Doc. No. 114. ] 231

fihat any attempt to iJi-ocnrc tho assent of the State of Maine to a new
conventional line, after the proceedings of the Senate, and while, in the
opinion of so large a portion of that body, the ascertainment of the line
•called for by the treaty of 17S3 was practicable, would have been utterly
"hopeless.

It is, however, a consideration of even greater importance, in tho
present slate of the discussion, that, as to the practicability of yet ascer-
taining the true line of the treaty of 17S3^, the opinion of the President
concurred with that of a majority of the Senate.

The President has been at no time less sensible of the difficulties
attending the settlement of this subject, than of the vital importance of
its settlement to the future amity between the two nations; and he has
never been unwilling to give every evidence of his solicitude, to the full
extent of his constitutional authority. He duly appreciates the observa-
tion of the committee of the Senate alluded to by Sir Charles R. Vaughan,
that it is a question of much perplexity and difficulty ; and he has, there-
fore, always endeavored to bring his mind to the consideration of the sub-
ject with that firmness and fortitude, no less than with the most friendly
disposition, necessary to overcome the difficulties with which it is beset.
He perceived, however, that, in all the previous eftbrts between the two
Governments to ascertain the boundary according to tlie line of the treaty
of 1783, and in the deliberations of the arbiter, a natural and uniform
rule in the settlement of disputed questions of location had been alto-
gether overlooked, and he perceived no reason to suppose that it had
been present to the minds of the respectable conniiittee of the Senate in
.making their report. He could not fail to perceive that, in every past
effort to ascertain the boundary of the treaty, the chief, if not the only
difficulty, arose from a supposed necessity of finding highlands correspond-
ing with the description required by the treaty, to which a line due
north from the monument might be drawn ; whereas it was plain that, if
such highlands could be anywhere discovered, it would be a legal execu-
tion of the treaty to draw a line to them from the monument, by the most
direct route, without regard to the precise course given in the treaty. Not
doubting that the adoption of this principle will remove the chief diificulty
which has hitherto embarrassed the subject, it became his duty to urge its
adoption upon the Government of his Britannic Majesty, as one, and per-
haps the best, expedient wliich remains for ascertaining the line of 17S3 to
the mutual satisfaction of the parlies.

The undersigned is unable to perceive, in the plan proposed, any thing
so complicated as Sir Charles appears to suppose. On the contrary, next
to its conformity with the uniform legitimate principles of surveying in
such cases, it is chiefly recommended to the approbation and confidence
of the President by its entire simplicity. In fact, the plan requires chiefly
the mere discovery of the highlands called for by the treaty of 17S3;
which being ascertained, the mode of reaching them, upon the principle
now suggested, is so simple, and is so clearly delineated m the diagram
presented in the letter of Mr. Livingston of the 2Sth May, 1833, that no
observations of the undersigned could make it plainer. It is presumed
that it will not be contended that the difficulty of discovering such high-
lands is insuperable. The arbiter himself, with the lights before him, is
not understood to have found it impracticable, at least to his own satis-
faction, to find highlands answering the description of the highlands of



232 [ Senate Doc. No. Hi. ]

the treaty •, but his enibanassinout arose I'loin not being able to find
them in a direction due north ironi the monument ; and, certainly, it can-
not be more dillicult lor commissioners on the spot, with the fullest means
of personal observation, to arrive at a conclusion, as to the locality ot" the
highlands, (Hiu;illy satisl'actory to their own judgment.

It would appear from Sir Charles R. Vaughan's note now under con-
sideration, that the undersii^Mied's answer of the 11th instant, on the con-
stitiuional point, is not suliituently exjilicit ; heing '' confined," as Sir
Charles siijiposes, '"to stating that, sliould 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, ac-
cording to the treaty of 178;}, a line drawn to them from the monument
at the source of the St. Croix river will be such a fulfilment of the terms
of that treaty as the President can agree to make it the boundary, without
reference to the State of JNIaine." The undersigned finds it difficult to
be more explicit upon this point than he has been in his obserA'ations al-
ready made to Sir Charles R. Vaiighan, and which, under the distinction
presented in his note of the 1 1th instant, consist in the assurance that the
Government of the United States have the constitutional authority to es-
tablish the line of 1783, which shall be designated as such by the com-
mission contemplated in the proposition submitted under the direction of
the President.

The want of authority in the Government of the United States, which
has been stated as a ditficulty to the adoption of the line recommended
by the arbiter, arises from the circumstance that that line is not only
confessedly ditferent from the original line called for by the treaty, but
would deprive the State of Maine of a portion of territory to which, ac-
cording to the hue of 1783, she would be entitled. By the proposition
of the President, however, a commission is to be raised, not to recom-
mend or establish a new line dilferent from tiic treaty of 1783, but to de-
termine what the true and original boundary, according to that treaty, was,
and in which of the two disagreeing parties the right to the disputed ter-
ritory originally was. For this purpose, the authority of the original com-
missioners, if they could have agreed, was complete under the treaty of
Client ; and that of the new commission, now to he constituted, cannot be



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 30 of 56)