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the United States and those of the King of Great Britain, on the North-
eastern frontier of the United States, according to the treaty of peace
of 1783."

The parties were thus placed, in respect to the disputed boundary, in
the situation respectively occupied by them before the conclusion of the
convention of the 24th December, 1814, in virtue of which the various
measures that had been successively adopted to bring this controversy to
a satisfactory termination were commenced ; leaving the President witli no
other rightful authority for its adjustment than that of opening anew ne-
gotiations for the settlement of the question, according to the terms and
upon the principles of the treaty of 1783.



240 [ S;»nate Doc. No. 414. ]

The un lorsigned is specially instructed to assure Sir Charles R. Vaughan
that the President duly appreciates the prompt sugsjestiou made by him,
as his Britannic Majesty's minister, that a negotiation sliould be opened
for the establishnieut of a conventional boundary between the two coun-
tries, which, while it respected, as far as i)racticable, their existing preten-
sions, should secure the best interests of each.

Possessing full power over the subject, his Majesty's Government
mi"'!!! very properly consult what was due to its uniform professions ; and
Sir Charles R. Vanghan may assure his Government that, if the President
had like powers, he would have met the suggestion in as favorable a
spirit as that by which it was prompted. His limited power has been
heretofore stated; and the reasons why, under the peculiar structure of
our poUtical system, the Federal Government cannot alienate any portion
of the territory of a State without its consent, have been given at large ta
Sir Charles R. Vaughan, as well as the reasons why, under existing cir-
cumstances, and while a hope remains of arriving at a settlement of the
question as oriijinally presented under the treaty, there is but little pros-
pect that the State of Maine would agree to the establishment of a new
line. Thus restricted in the exercise of his discretion, and embarrassed
by the dilliculties arising from the failure of anterior efforts, the President
has, nevertheless, given his constant attention to the subject, in the hope
of still being able to find some mode by which the protracted controversy
may be terminated satisfactorily.

The snbmission of the whole subject, or any part of it, to a new arbi-
trator, promised too little to attract the favorable consideration of either
party. The desired adjustment was, therefore, to be sought for in the ap-
plication to the controverted question of some new principle not heretofore
acted upon, and the consequent prosecution of investigations hitherto un-
attempted, because regarded as irrelevant and inapplicable. He thought
(and with respectful deference to the apprehension of his Majesty's Govern-
ment, he still thinks) that, with the hearty co-operation of his Majesty's
Government, the object which is so desirable to all parties — a Hiir and
equitable settlement of tlie boundary in dispute, according to the treaty of
1783, by a faithful prosecution of the plan which has been submitted, by
his directions, to the consideration of his Majesty's Government — is at-
tainable.

JJy the treaty of 1783, the boundary between the dominions of the two
Governments was to be a line drawn from the source of the St. Croix, di-
rectly north, to the highlands which divide the rivers which fall into the
Atlantic ocean from those which fall into the river St. Lawrence, (the
point at which the due north line was to cut the highlands was also desig-
nated as the northwest angle of the Province of Nova Scotia ;) thence,
along the said highlands, to the north westernmost head of the Connecticut
river.

Th(^ ascertainment of the true northwest angle of Nova Scotia, or the
desi'Miati«jn of the liighlands referred to, has been the principal difficulty
by which the sctiliMiKMit of the boundary has been so long retarded ; and
it was the supposed impracticability of satisfactorily accomj)lishing that
ascertainment or designation which prevented the adjustment by the ar-
bitrator. The United States have always contended th it the point to
which they have uniformly claimed is upon certain highlands north of
th.> river St. John, which answers, in every respect, the description given



[ SiHiite Doc. No. 414. ] 2U

in the treaty, and is the true northwest angle of Nova Scotia ; a claim
which is not intended to be abandoned or weakened by anything the
President has authorized to be proposed or said upon the subject. If the
highlands now referred to do, in truth, answer this description, no doubt
could be reasonably entertained of the justice of our claim, as there would
be a perfect concurrence in the course prescribed and the natural object
designated by the treaty; but, on the part of Great Britain, it has been
strenuously contended that no highlands, answering the description in the
treaty, could be found northward of the river St. John, npon a line run-
ning directly north ; and it has therefore been insisted that the due north
line shall be deemed to terminate to the southward of that river, and at a
place called Mars Hill.

The President is advised that it is a rule in practical surveying which
prevailed in this country before the Revolution, and has since been, and
still is, considered obligatory, that when there is found in the location of
the premises described in a deed, or any other instrument, a disagreement
in the course of a given line, and the bearing of a natural object called
for as its termination, the given course must be made to yield to the
given object, and the line closed at the object, in a direction correspond-
ing, as nearly as practicable, to the course prescribed, upon the princi-
ple that the natural object furnishes evidence of the true intention of the
parties, which may be relied upon with more safety than the course,
errors in which constantly occur, from the imperfection of the instruments
used, or the want of knowledge of those in whose hands they may have
been placed. He has thought that this rule might be rightfully and prop-
erly applied to the matter now in controversy, and is willing to agree
that if, upon a thorough examination, it shall appear to those appointed
by the parties to make it, that his Majesty's Government is correct in its
assumption that the highlands hitherto claimed by the United States as
those designated by the treaty do not answer that description, but that
those highlands are to be found to the west of the due north line, that
the boundary line should be closed according to the established rule in
practical surveying. Whether there are highlands to be found in a north-
westerly course from the source of the St. Croix, answering better to the
description given in the treaty of 1783 than those heretofore claimed by
the United States, and so clearly identified as to remove all reasonable
doubt, remains to be ascertained. No inquiry into this fact, with a view
to apply it to the respective and conflicting pretensions of the parties, has
hitherto been made. It was under these circumstances, and with such
impressions, that Mr. Livingston was authorized to propose to Sir Charles
R. Vaughan, for the consideration of his Government, that a new com-
mission should be appointed, consis^'-ig of an equal number of commis-
sioners, with an umpire selected by some friendly sovereign from among
the most skilful men in Europe, to decide on all points in which they
might disagree ; or a commission entirely composed of scientific Eu-
ropeans, selected by a friendly sovereign, to be attended in the survey
and examination of the country by agents appointed by the parties. The
adoption of this course would, it was urged, have the benefit of strict im-
partiality in the commissioners' local knowledge and high professional
skill, which, though heretofore separately called into action, have never
before been combined for the solution of the question.
17



212 I Senate Doc. No. Ul. J

In consequence olawish expressed by Sir Charles R. Vaughan to
be more fully advised of the views ol' the President upon the subject of
ihis pioposition, he was furnished ^\ith a diagiam, by which the manner
in which it was intended the line should be run, in the event highlands
weie liijcoN eieu better answering liie desci iption of the treaty than those
claimed by the United States, was pointed cut distinctly ; while, to relieve
Lis M;ije.''ty's (Government from :ill ajiprchension ofamoie extended
claim 1)1 toriitory on our part. Mi. Livingston was authorized to disclaim,
and did disclaim, all pretensions on the part of the United States to the
lerritory east ot the line which had been previously run directly north
Oom the source of the St. Croix. Actuated by that sincere desire to ef-
fect in tome proper way the settlement of the boundary in question, by
which he had been governed, Mr. McLane was subsequently authorized
by the President to propose to Sir Charles R. Vaughan, for the consider-
ation of his Majesty's Government, that, if the proposition made by Mr.
Livingston for the adjustment of one of the three points of difference was
accepted, the United States would, on their part, consent to adopt the
place designated by Great Britain as the northwesternmost head of Con-
Becticut river ; and would, also, as to the remaining point, the line from
Connecticut river to the St. Lawrence, adopt that wliich was run by Val-
entine and Collins, which, it was believed, would not be unacceptable to
Great Britain.

The undersigned does not learn from the conimunication of Sir Charles
R. Vaughan that the justice and reasonableness of the rule of practical
iur\ eying, offeied as the basis of Mr. Livingston's proj)osition, is now
disputed, although not considered by his Miijcsly's Government so gener-
ally established and lecognised as was supposed by the predecessor of
ihe undersigned.

If it should become material to do so, which is not from the present
aspect of the question to be anticipated, the undersigned would find no
difficulty either in fortifying the ground occupied by his Government in
this regaid, or in satisfying Sir Charles R. Vaughan that the instance of a
supposed departure from the rule, brought into notice by his Britannic
Majesty's Governnjent, is not at variance with the asseition of JNlr. Liv-
ingston, lepeated by Mr. McLane. F^or the present, therefore, he limits
himself to this single remark — that the line of demarcation between the
United States and the possessions of Great Britain, referred to by Sir
Chailes R. Vaughan, was not established as the true boundary prescribed
Ly the treaty of 1783, but was a conventional substitute for it of a parallel
of latitude, the icsult of a new negotiation, controlled by other consider-
ations than those which were to be drawn from that instrument only.
Under these circumstances, it is with unfeigned regret the President
learns the decision of his Majesty's Government not to agree to the
proposition made in that s|)irit of accommodation by which the United
States ha\ e throughout been inlluenced, without a jirecedent com[)liaiu'c
on their part with inadmissible conditions, 'ihcse conditions were first
brought to the consideration of the Goveiiimcnt of the United States by
Sir Charles R. V'aughan's letter to Mr. McLane of the lOlh of February,
1834, in which it was stated that, as the arbiter, in the course of his
reasoning on the main i)oint, had expressed his opinion upon several sub-
•rdinatc (juestions having a direct bearing thereon, these opinions, re-



[ Senate Doc. No. 414. J 213

garded by his Majesty's Government as decisions, ought to be acquiesced
in by the parties before any steps were taken to carry the President's
proposition into effect. These opinions, as stated by Sir Charles R.
Vaughan, were found to be seven in number, embracing substantially
every suggestion of the difficulties the arbitrator had found and express-
ed in yielding his assent to the American location of tiie disputed line.
Sir Charles R. Vaughan has already been put in possession of the Presi-
dent's views upon this proj)osal of his Majesty's Government. The
President sincerely believes that the new process of investigation j)ro-
posed by him might, under the control of the principle of practical sur-
veying developed, lead to a settlement of this agitating question, which,
as it would be legally and fairly made according to a long-established and
well-known rule, prevalent eijually among the citizens of the United
States and the subjects of his Britannic Majesty, ought to be, and he
confidently trusted would be, satisfactory to all parties. Under this con-
viction, and being moreover most solicitous that no means by which so
desirable an object might be facilitated should be left untried, he con-
sulted alike his inclination and his duty, by making the proposal in ques-
tion. If his Majesty's Government are so firm in the belief that a satis-
factory settlement of the disputed line of boundary, according to the
treaty of 1783, is so clearly impracticable as to render all future efforts
to that end unavailing, and had, on that account, declined the offer made
by the President, he might not have had cause to complain. But it ap-
peared to him to be exceedingly unreasonable that he should be asked to
adopt, in the prosecution of a proposed plan for the ascertainment of the
true boundary as prescribed by the treaty, those suggestions and opinions
of the arbiter, by which alone he had brought his mind to the extraordi-
nary conclusion that the boundaries prescribed could not be located ; more
especially so, when the President sincerely dissented from the correct-
ness of those opinions; and when, in addition thereto, the admission of
some of them might, as understood by and following the previous pre-
tensions of his Majesty's Government, establish as the true boundary of
the treaty of 1783 the line claimed by Great Britain, yet declared by
the arbiter himself, the adoption of whose opinions was thus asked, to be
towards the United States unjust and inequitable, and not comporting
with the obligations and intentions of the parties to that instrument. Sir
Charles R. Vaughan was informed by Mr. McLane of the reasons
upon which this opinion of the President was founded, and his Majesty's
Government invoked not to persist in requiring conditions to which the
President could not assent. The President is pleased to find that the
frank and conciliatory spirit in which this was done has been duly ap-
preciated by his Majesty's Government, and sincerely regrets that they
were not also found to possess sufficient force and justice to induce it to
withdraw entirely the objectionable conditions. Such, he is concerned
to find, has not been the case ; but that, on the contrary, while it has
pleased his Majesty's Government to waive, for the present, six of the
seven opinions referred to, the remaining one, among the most important
of them all, is still insisted upon. The President does not think it ne-
cessary to direct anything to be added to the reasons which have been
urged by Mr. McLane in support of the objections of a general character
to the course which his Majesty's Government think it justifiable to pur-



211 [ Senate Doc. No. 414. J

sue in this respect, and the undersigned, therefore, only requests a care-
ful reconsideration of them. In respect to the specific condition still per-
sisted in — viz : that the St. John's and Hi^titiouche should be treated by
the proposed commission as not being Atlantic livers, according to the
meaning of those terms in the treaty — the undersigned submits a few
brief remarks. Whether these rivers were or were not to be so regard-
ed was a point most laboriously argued between the two Governments,
but without success, as far as it respected the opinions of eitlier. Sir
Charles R. Vaughan, in his communication to which this is a reply, has
reasserted some of the positions of fact, and re-enforced some of the rea-
sons then asserted and urged by his Government ; but the undersigned is
not apprized of anything new, either of fact or argument, that has now,
fertile first time, been brought forward. The inutility of renewing the
discussion on this point is so obvious, that the uudersigned deems it ne-
cessary merely to suggest that, however convincing and satisfactory the
argument of the British Government to itself, it has been ever considered
by the United States as altogether inconclusive, and the contrary position
as most fully sustained by the arguments and facts heretofore adduced
on their part in the discussion between the two Goveinments of the sub-
ject. That part of the communication of Sir Charles K. Vaughan, how-
ever, which seeks to strengthen the ground heretofore taken on this point
by his Government, by calling to its aid the supposed confirmation by the
arbiter, jequires a more particular notice. In Sir Charles R. Vaughan's
note of the 10th of February, 1834, the arbiter is represented to have
declared that " rivers falling into the bay of Chaleurs and the bay of Fun-
dy cannot be considered, according to the meaning of the treaty, as rivers
falling into the Atlantic ; and especially that tlie rivers St. John and
Ristigouche cannot be looked upon as answering tlic latter description ;"
and, in Sir Charles R. Vaughan's last communication, the fact of such an
opinion having been declared is taken lor granted. Without stopping to
question the effect of such a declaration upon the rights of the parties, as
it has been rendered unnecessary by what has heretofore been said, the
undersigned feels himself fully warranted in questioning that any such
opinion has been given by the respected arbiter.

In regard to the first and most material point in controversy — where is
the spot designated in the treaty as the northwest angle of Nova Scotia,
and wheie the highlands dividing the rivers that empty themselves into
the river St. Lawrence from those falling into the Atlantic ocean, along
which highlands is to be drawn the line of boundary from that angle to
the noi thwesternmost head of the Connecticut river.''- the ai biter con-
sidered "that the nature of the dilference, and the vague and not suffi-
ciently determinate stij)ulations of the treaty of 1783, do not permit to
adjudge eiilicr of the lines to one of the said j)aitics, Avilhout wounding
the piinciples of law and ecjuity with regard to the other." It is indeed
true that, in support of this view of the subject, it was observed by the
ai biter, " that if, in contradistinction to the rivers that empty themselves
into the river St. Lawience, it had been proper, agreeably to the lan-
guage ordinarily used in geography, to comprehend the rivers (ailing into
the bays Fundy and des Chaleurs with those emptying themselves direct-
ly into ihe Atlantic ocean, in the generical denomination of rivers falling
into the Atlantic ocean, it would be hazardous to include into the spe-



[ Senate Doc. No. 414. J 2 15

cies belonging to that class the rivers St. John and Ristigouche, which
the line claimed at the north of the river St. John divides immediately
from rivers emptying themselves into the river St. Lawrence, not with
other rivers falling into the Atlantic ocean, hut alone ; and thus to apply,
in interpreting the limitation established by the treaty, where each word
must have a meaning, to two exclusively special cases, and where no
mention is made of the genus, (genre J a generical expression which
would ascribe to them a broader meaning," &c.

It cannot but appear, from further reflection, to Sir Charles R.
Vaughan, that this declaration, that the rivers St. John and Ristigouche
could not be a/one taken into view, without hazard, in determining the
disputed boundary, is not the expression of an opinion that they should
be altogether excluded in determining that question ; or, in other words,
that the opinion of the arbitrator is, that the St. John and Ristigouche
cannot be looked upon as rivers emptying into the Atlantic.

The undersigned has examined the award in vain, to discover any other
declaration of the arbiter, from which support could be derived for the
assumption under consideration, and he finds nothing to sustain it in the
general conclusions which the arbitrator allowed himself to reach. On
the contrary, he insists that, independently of the strong inference to be
drawn from the whole tenor of the award, that it was not his intention
to express the opinion imputed to him. 1'he arbiter has, in terms, pro-
tected himself, as well as the United States, against such an assumption,
by the following explicit declaration, almost immediately succeeding that
which can only be relied on to support^the opposite conclusion : " And,
on the other hand, that it cannot be sufficiently explained how, if the high
contracting parties intended, in 1783, to establish the boundary at the
south of the river St. John, that river, to which the territory in dispute is,
in a great measure, indebted for its distinctive character, has been
neutralized and set aside."

Entertaining these views, the President has made it the duty of the
undersigned to apprize Sir Charles R. Vaughan that he cannot agree to
clog the submission with the condition proposed by his Majesty's Gov-
ernment. A thorough and most careful re-examination of the subject, in
all its relations, has but served to confirm his previous impressions that a
just regard for the rights of the parties, and a proper consideration of his
own duty, required that the new submission, if made, should be made
without restriction or qualification upon the discretion of the commission-
ers, other than such as result from established facts and the just interpre-
tation of the treaty of 1783, and such as have been heretofore, and are
hereby now again, tendered by him to his Britannic Majesty's Govern-
ment. He despairs of obtaining a better constituted tribunal than the
one proposed. He sees nothing unfit or improper in submitting the
question as to the character in which the St. John's and Ristigouche are to
be regarded, to the decision of impartial commissioners ; the parties have
heretofore thought it proper so to submit it, and it by no means follows
that, because commissioners chosen by the parties themselves, without
an umpire, have not been able to come to an agreement in respect to it,
that the same unfortunate result would attend efforts of commissioners
differently selected.

The President is not at present advised of any other proposition that



216 f ScnateDoc. No. 414. j

it is in his power to make, iu furtherance ol that object, which is alone
uithin his constitutional competency — the settlement of the boundary ac-
cording to t!ie treaty of 1783. The undersigned is, however, instructed
to say that lie will be most happy to receive any such proposition as his
Britannic Majesty's Government may think it expedient to make, and
■will not fail to consider it in a just and conciliatory spirit. He has also
been authorized by the President to confer with Sir Charles R. Vaughan,
whenever it may suit his convenience, and comport with the instructions
of his Government, as well in respect to any suggestion which he may
have to make upon the subject of the treaty boundary, as to any propo-
sition his Majesty's Government may be disposed to offer for a conven-
tional substitute for it. The undersigned deems it, however, requir(id
by frankness to say to Sir Charles R. Vaughan, that, as the President
does not possess the power to establish a conventional boundary, without
the assent of the State of Maine, it will be greatly conducive to the
preservation of that harmony between the two countries both are so
desirous to cherish, and is so liable to be impaired by unavailing nego-
tiation, that whatever proposition his Majesty's Government may feel
disj)osed to make should, before its submission to the authorities of that
State, receive a form sufficiently definite to enable the President to
take their sense upon it without embarrassment, and with the least pos-
sible delay.

The undersigned avails himself of the occasion to renew to Sir Charles
R. Vaughan the assurance of his great consideration.

JOHN FORSYTH.

Right Hon. Sir Charles R. Vaughan, &c.



Sir Charles R. Vaughan to Mr. Forsyth.

Washington, May 4, 1S35.

The undersigned, his Britannic Majesty's envoy extraordinary and
minister plenipotentiary, has the honor to acknowledge the receipt of the
note of the Secretaiy of State of the United States, in answer to the



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 32 of 56)