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observations which he presented, according to the instructions of his
Majesty's Government, respecting the proposal of the Picsident of the
United States to endeavor to settle the boundary by establishing a new
commission of survey.

It is with great regret that (he undersigned linds that a condition which
his Majcsly's Government stated to be an essential preliminary to the
adoption of the proposal of the President, is declared to be inadmissible
by the Government of the United States.

The Secretary of State, in his note, not only questions, but positively
denies, (hat the view taken by his Majesty's Government of that point in
the (!i^pu(e which resjiccts the rivers which are to be considered as fall-
ing directly ifito the A(lan(ic, has received any confirmation, as alleged
in the note of the undersigned, from the terms of the award of the arbiter.

Without attempting to give a clear exposition of the meaning of that
j)assage in the award where it is stated that it would be hazardous to

1 Soiiatc Doc. No. 414. ] 247

comprehend the rivets Ristigouche and St. John in those which fall
diiectly into the Atlantic ocean, the very passage cited by xMr. I'orsyth
in his noto Ibims a pai t of the reasoning of the arbiter, founded on the
words of the treaty, against admitting the American line north of the St.
John, because that river and the Uistigouche, wliich that noitli line sepa-
rates from rivers emptying themselves into the St. Lawrence, are not to be
considered as the rivers of the treaty which fall into the Atlantic ocean.
The undersigned, therefore, appeals with confidence to the tenor of
the language of the award, to justify the inference which has been
drawn from it by his Majesty's Government.

The acquiescence of the Government of the United States in that
which was understood to be the opinion of the arbiter, was invited bj
his Majesty's (government, because the new commission could not enter
upon their survey of the disputed territory in search of the highlands,
to be distinguished by the se()aration of rivers, without a previous agree-
ment between the respective Governments what rivers ought to be con-
sidered as rivers falling into the Atlantic.

Mr. Forsyth observes that the new submission should be left to the
discretion of the commissioners, without lestriction ; but it appears to
the undersigned that, if the character in which the rivers Ristigouche
and St. John are to be regarded, is a question to be submitted to them,
the proposal of the President would assume the character of a renewed
arbitration, which, as Mr. Forsyth observes, "promises too little to at-
tract the favorable consideration of either party."

While his Majesty's Government has been disposed to maintain the
validity of the decisions of the arbiter on subordinate points, their men-
tion has not been exclusively confined to those decided in favor of Brit-
ish claims. An attentive consideration of (he whole of the decisions in
the award will show that they are nearly balanced in favor of either
party ; while the general result of the arbitration, to which his Majesty's
Government expressed a willingness to adhere, was so manifestly in fa-
vor of the United States, that to them were assigned three-fifths of the
territory in dispute, and Rouse's Point, in Lake Champlain,to which the
American Government had voluntarily resigned all claim.

The undersigned begs leave to offer some explanation of the sugges-
tion which he ventured to make without instructions from his Govern-
ment, which is alluded to in the note of the Secretary of State. In a
note addressed to Mr. McLane, and dated the 31st May, 1833, the un-
dersigned, being convinced of the insuperable ditficulties in the way of
tracing the line of the treaty, notwithstanding the proposal of the Presi-
dent to deviate from the due north line from the St. Croix river, in
search of the highlands, ventured to observe that the question of bound-
ary could only be set at rest by the abandonment of the defective de-
scription of it in the treaty, and by the Governments mutually agreeing
upon a conventional line more convenient to both parties than either of
the lines insisted upon by the commissioners under the treaty o> Ghent,
or the line recommended by the King of the Netherlands. The answer
to that suggestion, in a note dated the olh June, 1833, from Mr. McLane,
was, that it would rather add to than obviate the constitutional difficul-
ties, already insuperable.

The undersigned acknowledges, with great satisfaction, the assurance

248 I Senate Doc. No. 4 11 J

which he hai> now received, that, il the I'resident possessed the same
full power as his Majesty's (iovernincnt over the question of boundary,
so long in discussion, he would have met the suggestion in as favorable
a spirit as that by which it was prompted. His Majesty's Government
must acknowledge, and will duly appreciate, the friendly spirit and the
unwearied endeavors of the President to remove the only ditficulty
which remains in the relations with the United States; and it is to be
lamented that the two Governments cannot coincide in the opinion that
the object is attainable by the last proposal of the President, as it is in
his power to offer, in alleviation of the hopeless task of tracing the line
of the treaty to which the Senate has advised, that any further negotiation
with the British Ciovernmcnt should be restricted.

The undersigned will transmit, without delay, to his Majesty's Gov-
ernment, a copy of the note which he has had the honor to receive from
the Secretary of State of the United States, and he is ready to meet the
wishes of the President, and to confer with the Secretary of State, when-
ever it may be convenient to receive him.

As to any proposition which it may be the wish of the Government of
the United States to receive from his Majesty's Government, respecting
a conventional substitute for the line of the treaty of 1783, the constant
allusion, in the correspondence which has taken place, to constitutional
difficulties in the way of the Executive treating for any other line than
one conformable w ith that of the treaty, until the consent of the State of
Maine is obtained, seems to point out the necessity, in the first instance,
of attaining that object, which must be undertaken, exclusively, by the
General Government of the United States. As to other ditliculties which
present themselves to the undersigned, they will, more properly, form the
subject of a conference with the Secretary of State.

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


[Ion. John Forsyth, &c.

Mr. Bankhead to Mi-. Forsyth.

Washington, December 28, 1835.

The undersigned, his Britannic Majesty's charge d'affaires, has the
honor to acquaint Mr. Forsyth, the Secretary of State of the United
States, that his Majesty's Government have taken into their most delib-
erate consideration the note presented by Mr. Forsyth to Sir Charles
Vaughan, on the 2Sih of April last, upon the boundary question ; and the
undersigned has been instructed to make the following communication
to Mr. ForsUh, in reply:

His Majesty's Government have observed with the greatest pleasure,
during the whole of the communications which of late have taken place
on this question, the friendly and conciliatory spirit which has been man-
ifested by the President of the United States; and they are themselves
equally animated by the sincerost desire to settle this matter by an ar-
rangement just and hoDOiabh' for both parties.

f Senate Doc. No. 414. J 2 49

His Majesty's Governn)ent arc fully convinced that, if the repeated
attempts which they have made to come to an understanding on this sub-
ject wi'h the Government of the United States have not been attended
with success, the failuic of their endeavors has been owing to no want
of a corresponding disposition on the part of the President, but has arisen
from difficulties on his side over which he has had no control.

His Majesty's Government, however, do not the less lament that the ad-
vances which they have made have been fiuitless; but with their regret
is mingled the satisfactory consciousness which they feel, that, in making
those advances, they have gone to the utmost extent to which a due re-
gard to the honor and interests of the British Crown could permit them
to go.

The time seems, however, now to be arrived, when it has become
expedient to take a review of the position in which the discussion be-
tween the two Governments stands; and, by separating those plans of
arrangement which have failed from those which are yet susceptible of
being adopted, to disencumber their future communications of all useless
matter, and to confine them to such suggestions only as may by possi-
bility lead to a practical result.

And, first, with regard to the award of the King of the Netherlands.
The two Governments had agreed to refer to that sovereign, as arbiter,
the decision of three points of difference, and they pledged themselves
beforehand to abide by the decision which he might pronounce. The
King of the Netherlands decided, absolutely, two points out of the three ;
and with respect to the third, while he declared that an absolute decision
of that point was impossible, he recommended to the two parties a com-
promise .

His Majesty's Government, on receiving the award of the King of the
Netherlands, announced, without any hesitation, their willingness to
abide by that award, if it should be equally accepted by the United

His Majesty's Government were, of course, fully aware that this award
was not an absolute decision on all the three points submitted to refer-
ence ; they were also quite sensible that, in some important matters,
this award was less favorable to Great Britain than it was to the United
States; but the wish of his Majesty's Government for a prompt and ami-
cable settlement of this question outweighed the objections to which the
award was liable, and, for the sake of obtaining such a settlement, they
determined to accept the award.

But their expectations were not realized. The Senate of the United
States refused, in July, 1832, to subscribe to the award ; and during the
three years which have elapsed since that time, although the Biitish
Government has more than once declared that it was still ready to abide
by its offer to accept the aw^ard, the Government of the United States
has as often replied that, on its i)art, that award could not be agreed to.
The British Government must now, in its turn, declare that it considers
itself, by this refusal of the United States, fully and entirely released
from the conditional offer which it had made ; and the undersigned is in-
structed distinctly to announce to the President that the British Govern-
ment withdraws its consent to accept the territorial compromise recom-
mended by the King of the Netherlands.

2fi0 f Senate Doc. No. 414. ]

The award being thus disposed of, the next matter to be considered
is, the proposal of the President of the United States that a new survey
of the disputed territory should be made by commissioners, to be named
in one of the two ways suggested by him; and that these commissioners
shouKl endeavor, by exploring the country, to trace a boundary line that
shoeld be conformable with the treaty of 1783.

With this view, the President suggests that, whereas the landmark to
be looked for consists of certain highlands described in tiwi treaty, the
commissioners should be authorized to search for those highlands in a
northwesterly direction from the head of the St. Croix river, if no such
highlands should be found in the due north line from that point.

To this, his Majesty's Government replied, that, before an exploring
commission could be sent out in search of these highlands, it would be
necessaiy that the two Governments, and by consequence their respect-
ive commissioners, should be agieed as to the definition by which any
given hills were to be identified as being the highlands intended by the

That, according to the words of the treaty, these highlands were to be
known by the circumstance of their dividing riveis flowing into the St.
Lawrence from rivers flowing into the Atlantic ; that, with regard to
rivers flowing into the St. Lawrence, no doubt could possibly exist as to
which those rivers were, but with regard to rivers flowing into the At-
lantic ocean, a question has been mooted as to them, and this question
is, whether the bay of Fundy should, for the purpose of the treaty, be
considered as part of the Atlantic, and whether rivers flowing into that
bay should be deemed to be Atlantic rivers.

His Majesty's Government stated the reasons which, in their opinion,
render it clear and certain that the treaty of 1783 established a distinc-
tion between the bay of Fundy and the Atlantic ocean; and, therefore,
excludes from the class of Atlantic rivers, rivers which discharge them-
selves into that bay.

His Majesty's Government further quoted, in confirmation of this opin-
ion, the decision which, as they contend, the King of the Netherlands
incidentally gave upon this question in the course of his award ; and
they expressed their hope that the Government of the United States
would be prepared to agree with them, and with the King of the Nether-
lands, on this particular point.

It appears, however, l)y Mr. Forsyth's note of the 28tli Apiil, that this
hope has been disappointed, and that the President finds himself unable
to admit the distinction drawn on this point between the bay ol Fundy
and the Atlantic ocean.

Under these circumstances, his Majesty's Government cannot see how
any useful lesult could arise out of the proposed survey ; and it appears
to them, on the contrary, that if such survey did not furnish fresh subjects
of dilference between the two (Jovernments, it could at best only bring
the subject back to the same point at which it now stands.

For the commissioners would probably not proceed far in their survey
without coming to some high ground to which this dilference of opinion
on the river question would apply : the American commissioners would
say that they had found the highlands of the treaty ; the Hrilish commis-
sioners would declare that those were not the highlands which the treaty

[ Senate Doc. No. 414. J 251

describes. What, under such circumstances, would the commissioners
have to do? Would they, then^ come back to their respective Govern-
ments for that decision on the river (jueslion which ought to have been
made before they set out? or, failing to come to an agreement among
themselves as to the character of the higli ground thus met with, would
they then at once, and without further reference to their (iovernments,
endeavor to find, in some other jdace, and some other direction, high-
lands which both Governments might agree to accept, as separating rivers
which flow into the St. Lawrence from rivers which, by the consent of
both parties, flow into the Atlantic ocean ? If, indeed, the proposal of
the President is to be understood as implying that ihis latter course of
proceeding would be adopted, much of the difficulty attending the exe-
cution of that proposal would be removed.

The President, however, has suggested another way of getting over
the embarrassment of the river question ; and to this plan his Majesty's
Government regret that it is not in their power to assent. The Presi-
dent suggests that the commission of survey should be empowered to de-
cide this point of difference. But his Majesty's Government cannot admit
that this point could properly be referred to such a commission. The river
question is one which turns upon no local survey, and for the decision
of which no further geographical or topographical information can be re-
quired. It turns upon the interpretation to be put upon the words of the
treaty of 1783, and upon the application of that interpretation to the ge-
ographical facts already well known and ascertained : a commission of
survey, therefore, has no peculiar competency to decide such a question.

But, to refer that question to any authority, would be to submit it to a
fresh arbitration ; and if his Majesty's Government were prepared to
agree to a fresh arbitration, which is by no means the case, such arbitra-
tion ought necessarily to include all the points in dispute between the
two Governments, and not to be confined to one particular point alone.

With respect, then, to the President's proposal for a commission of ex-
ploration and survey, his Majesty's Government could only agree to such
a commission, provided there were a previous understanding between the
two Governments, that although neither should be required to give up its
own interpretation of the river question, yet as the commission of survey
would be intended for purposes of conciliation, and with a view of put-
ting an end to discussion on controverted points, the commissioners should
be instructed to search for highlands upon the character of which no doubt
could exist on either side.

But, if this modification of the President's proposal should not prove
acceptable to the Government of the United States, the only remaining
way of arriving at an adjustment of the difference would be to abandon
altogether the attempt to draw a line in conformity with the words of the
treaty of 1783, and to fix upon a conventional line, to be drawn according
to equitable princij)les, and with a view to the respective interests and
convenience of the two parties.

His Majesty's Government are perfectly ready to treat for such a line,
and they conceive that the natural features of the disputed territory
would afford peculiar facilities for drawing it.

When a tract of country is claimed by each of two States, and each
party is equally convinced of the justice of its own claims to the whole

252 r Senate Doc. No. 4i4. |

of the disti ict ill question, the fairest way of settling the controversy
would seem to be to divide, in equal portions, between the two claim-
ants, the territory in dispute.

Such a mode of arrangement appears to be consistent with the natural
princi})lcs of equity.

His Majesty's Government would, therefore, propose to that of the
United States to ailjust the present diflfcrence, by dividing equally be-
tween Great Britain and the United States the territory in dispute ; al-
lotting to each party that portion which, from contiguity or other circum-
stances, would be most desirable as a j)OSsession for each.

The general outline of such a division would be, that the boundary be-
tween the two States should be drawn (as required by the treaty) due
north from the head of the St. Croix river, and should be carried straight
on till it intersected the St. John's ; from thence it should run up the bed
of the St. John's to the southernmost source of that river, and from that
point it should be drawn to the head of the Connecticut river, in such
manner as to make the northern and southern allotments of the divided
territory as nearly as possible equal to each other in extent; the north-
ern allotment to remain with Great Britain, the southern allotment to
belong to the United States.

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


Hon. John Forsyth, &c.

Mr. Forsyth to Mr. Bankhead.

Department of State,

Washington, February 29, 1836.

The undersigned, Secretaiy of State of the United States, has been
instructed to reply to the note of Mr. Bankhead, his Britannic Majesty's
charge d'affaires, of the 28th December last, on the subject of the north-
eastern boundary of the United States. The President sees with great
satisfaction the continued assurances of the British Government of its
earnest desire speedily and justly to settle the matter in controversy by
an arrangement honorable to both parties, and believes that his own con-
ciliatory disposition will be best manifested by a direct attention to the
points now presented by his Britannic Majesty's Government, with a view
to some defmite understanding on the subject.

The award of the arbitrator having been now abandoned by both par-
ties to the arbitration, the whole sul)ject is open as if there never had
been a submission of it. The President perceives in Mr. Bankhead's note
no allusion to any portion of the line, except that beginning at the source
of the St. Croix, and terminating at the head of tiie Connecticut river. Sup-
posing that this omission to bring into view the residue of the boundary
line between the United States and the dominions of his Britannic Ma-
jesty has been the result of a conviction that the parties so far understood
each other as to be satisfied that, on that i)art of the subject, a settlement
could be made without difliculty or delay, whenever it was important to

[ Senate Doc. No. 4M. J 253

them to make it, the President has instructed the undersigned to confine
himself to the points touched by Mr. Uankhead's note, with this single
suggestion, that events ot a very grave character have lately occurred,
which impress upon his mind a conviction that an establishment ot" that
part of the line as to which the parties aie neai ly of accord, had better be
made at once, unless the eflbrts now making should promise an imme-
diate adjustment of the whole controversy.

The President finds, with great regret, that his Britannic Majesty's
Government adheres to its objection to the appointment of a commis-
sion, to be chosen in either of the modes proposed in former commu-
nications on the part of the United States. This regret is heightened by
the conviction that the proposition upon which it is founded, "that the
river question," as it is called, " is a question of treaty construction only,"
although repeated on various occasions by Great Britain, is demonstra-
bly untenable. Indeed, it is plausible only when material and most im-
portant words of description in the treaty are omitted in quoting from
that instrument. The treaty marks the two determining points of the
line in dispute, the source of the St. Croix, and the northwest angle of
Nova Scotia. Is it a question of treaty construction only, where the
northwest angle of Nova Scotia is ? A survey of Nova Scotia, as known
at the date of the treaty of peace, necessarily establishes that point.
Where is it to be found, according to the public acts of Great Britain.^
Is it to be found on a line beginning on the westernmost bend of the bay
des Chaleurs, and thence along the highlands dividing the waters falling
into the St. Lawrence from the waters falling into the sea? Can his
Majesty's Government expect the Government of the United States to
consent, before the selection of commissioners of examination and sur-
vey, and the appointment of an umpire to decide on the contingency of
their disagreement, that the terminating point of the line running due
north from the source of the St. Croix is^to be alone looked for on high-
lands which cannot be reached from the westernmost bend of the bay
des Chaleurs but by running directly across high mountains, deep val-
leys, and the large rivers that flow through them ? Agreement between
the United States and Great Britain on this point is impossible, while his
IVIajesty's Government continues to maintain this position. The Presi-
dent, therefore, as at present informed, is under the necessity of looking
to the new and conventional line offered in Mr. Bankhead's note. That
equity, in disputes about territory, when both parties are satisfied of the
justice of their respective pretensions, requires a fair division of the dis-
puted property, is a truth the President freely admits ; but the under-
signed is instructed to remind Mr. Bankhead of what has been heretofore
stated, that in a conventional line the wishes and interests of the State
of Maine were to be consulted, and that the President cannot, in juslice
to himself or to that State, make any proposition utterly irreconcileable
with her previously well-known opinions on the subject. Ilis Majesty's
Government will not have forgotten that the principle of compromise and
equitable division was adopted by the King of the Netherlands in the
line recommended by him to the parties ; a line rejected by the United
States, because unjust to Maine : and yet the line proposed by the King
of the Netherlands gave to Great Britain little more than two millions,
while the proposition now made by his Britannic Majesty's Government

254 [ Senutc Doc. No. 41 1. ]

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