A Compilation of the Messages and Papers of the Presidents
by
James D. Richardson
Part 5 out of 11
those which fall into it _indirectly_; that the arbiter was further of
opinion, though at variance with the idea entertained in that respect by
the United States, that the rivers St. John and Restigouche, emptying
their waters into the bays of Fundy and Des Chaleurs, did not belong to
the species of rivers falling _directly_ into the Atlantic; that if they
were considered _alone_, therefore, the appellation of "rivers falling
into the Atlantic Ocean" could not be regarded as applicable to them,
because, to use the language of the award, it would be "applying to two
exclusively special cases, where no mention was made of the genus, a
generical expression which would ascribe to them a broader meaning;" but
it is not conceived that the arbiter intended to express an opinion that
these rivers _might not be included with others_ in forming the _genus_
of rivers described by the treaty as those which "fall into the
Atlantic," and that upon this ground they should be wholly excluded in
determining the question of the disputed boundary. While, therefore, the
undersigned agrees with Mr. Fox that the arbiter did not consider these
rivers as falling directly into the Atlantic Ocean, the undersigned can
not concur in Mr. Fox's construction when he supposes the arbiter to
give as a reason for this that they are not divided in company with any
_such last-mentioned rivers_--that is, with rivers falling _directly_
into the Atlantic. Conceding as a point which it is deemed unnecessary
for the present purpose to discuss that the grammatical construction of
the sentence contended for by Mr. Fox is the correct one, the arbiter is
understood to say only that those rivers are not divided _immediately_
with others falling into the Atlantic, either directly or indirectly,
but he does not allege this to be a sufficient reason for excluding them
when connected with other rivers divided mediately from those emptying
into the St. Lawrence from the genus of rivers "falling into the
Atlantic." On the contrary, it is admitted in the award that the
line claimed to the north of the St. John divides the St. John and
Restigouche in company with the Schoodic Lakes, the Penobscot, and the
Kennebec, which are stated as emptying themselves _directly_ into the
Atlantic; and it is strongly implied in the language used by the arbiter
that the first-named rivers might, in his opinion, be classed for the
purposes of the treaty with those last named, though not in the same
_species_, yet in the same _genus_ of "Atlantic rivers."
The reason why the St. John and Restigouche were not permitted to
determine the question of boundary in favor of the United States is
understood to have been, not that they were to be wholly excluded as
rivers not falling into the Atlantic Ocean, as Mr. Fox appears to
suppose, but because in order to include them in that genus of rivers
they must be considered in connection with other rivers which were not
divided _immediately_, like themselves, from the rivers falling into the
St. Lawrence, but _mediately_ only; which would introduce the principle
that the treaty of 1783 meant highlands that divide as well mediately as
immediately the rivers that empty themselves into the river St. Lawrence
from those which fall into the Atlantic Ocean--a principle which the
arbiter did not reject as unfounded or erroneous, but which, considered
in connection with the other points which he had decided, he regarded as
_equally realized by both lines_, and therefore as constituting an equal
weight in either scale, and consequently affording him no assistance in
determining the dispute between the respective parties.
The arbiter appears to the undersigned to have viewed the rivers St.
John and Restigouche as possessing both a specific and a generic
character; that considered _alone_ they were _specific_', and the
designation in the treaty of "rivers falling into the Atlantic" was
inapplicable to them; that considered _In connection with other rivers_
they were _generic_ and were embraced in the terms of the treaty, but
that as their connection with other rivers would bring them within a
principle which, according to the views taken by him of other parts of
the question, was equally realized by both lines, it would be hazardous
to allow them any weight in deciding the disputed boundary. It has
always been contended by this Government that the rivers St. John and
Restigouche were to be considered in connection with the Penobscot and
Kennebec in determining the highlands called for by the treaty, and the
arbiter is not understood to deny to them, when thus connected, the
character of "rivers falling into the Atlantic Ocean."
This construction of the arbiter's meaning, derived from the general
tenor of the context, it will be perceived, is not invalidated by the
next succeeding paragraph cited by Mr. Fox, in which the bays of Fundy
and Des Chaleurs are spoken of as _intermediaries_ whereby the rivers
flowing into the St. John and Restigouche reach the Atlantic Ocean,
inasmuch as such construction admits the opinion of the arbiter to have
been that the St. John and Restigouche do not fall _directly_ into the
Atlantic, and that they thus constitute a _species_ by themselves, while
it denies that they are therefore excluded by the arbiter from the genus
of "4' rivers falling into the Atlantic."
The undersigned avails himself of this opportunity to renew to Mr. Fox
the assurance of his distinguished consideration.
JOHN FORSYTH.
_Mr. Forsyth to Mr. Fox_.
DEPARTMENT OF STATE,
_Washington, February 7, 1838_.
HENRY S. FOX, Esq., etc.:
The undersigned, Secretary of State of the United States, has the honor
to acknowledge the receipt of the note addressed to him on the 10th
ultimo by Mr. Fox, Her Britannic Majesty's envoy extraordinary and
minister plenipotentiary at Washington, with regard to the question
pending between the two Governments upon the subject of the northeastern
boundary, and to inform him that his communication has been submitted to
the President. It has received from him the attentive examination due
to a paper expected to embody the views of Her Britannic Majesty's
Government in reference to interests of primary importance to both
countries. But whilst the President sees with satisfaction the
expression it contains of a continued desire on the part of Her
Majesty's Government to cooperate with this in its earnest endeavors to
arrange the matter of dispute between them, he perceives with feelings
of deep disappointment that the answer now presented to the propositions
made by this Government with the view of effecting that object, after
having been so long delayed, notwithstanding the repeated intimations
that it was looked for here with much anxiety, is so indefinite in
its terms as to render it impracticable to ascertain without further
discussion what are the real wishes and intentions of Her Majesty's
Government respecting the proposed appointment of a commission of
exploration and survey to trace out a boundary according to the letter
of the treaty of 1783. The President, however, for the purpose of
placing in the possession of the State of Maine the views of Her
Majesty's Government as exhibited in Mr. Fox's note, and of ascertaining
the sense of the State authorities upon the expediency of meeting those
views so far as they are developed therein, has directed the undersigned
to transmit a copy of it to Governor Kent for their consideration. This
will be accordingly done without unnecessary delay, and the result when
obtained may form the occasion of a further communication to Her
Majesty's minister.
In the meantime the undersigned avails himself of the present occasion
to offer a few remarks upon certain parts of Mr. Fox's note of the 10th
ultimo. After adverting to the suggestion heretofore made by the British
Government that a conventional line equally dividing the territory in
dispute between the two parties should be substituted for the line
described by the treaty, and regretting the constitutional incompetency
of the Federal Government to agree to such an arrangement without the
consent of the State of Maine, Mr. Fox refers to the conventional line
adopted, although different from that designated by the treaty, with
respect to the boundary westward from the Lake of the Woods, and asks,
"Why should such a line not be agreed to likewise for the boundary
eastward from the river Connecticut?" The reply to this question is
obvious. The parallel of latitude adopted on the occasion referred to
as a conventional substitute for the treaty line passed over territory
within the exclusive jurisdiction of the General Government without
trenching upon the rights or claims of any individual member of the
Union, and the legitimate power of the Government, therefore, to agree
to such line was perfect and unquestioned. Now in consenting to a
conventional line for the boundary eastward from the river Connecticut
the Government of the United States would transcend its constitutional
powers, since such a measure could only be carried into effect by
violating the jurisdiction of a sovereign State of the Union and by
assuming to alienate, without the color of rightful authority to do
so, a portion of the territory claimed by the State.
With regard to the suggestion made by the undersigned in his note of the
29th of February, 1836, of the readiness of the President to apply to
the State of Maine for her assent to the adoption of a conventional line
making the river St. John, from its source to its mouth, the boundary
between the United States and the adjacent British Provinces, Mr. Fox
thinks it difficult to understand upon what grounds an expectation
could have been formed that such a proposal could be entertained by
the British Government, since such an arrangement would give to the
United States even greater advantages than would be obtained by an
unconditional acquiescence in their claim to the whole territory in
dispute. In making the suggestion referred to, the undersigned expressly
stated to Mr. Bankhead that it was offered, as the proposition on the
part of Great Britain that led to it was supposed to have been, without
regard to the mere question of acres--the extent of territory lost or
acquired by the respective parties. The suggestion was submitted in the
hope that the preponderating importance of terminating at once and
forever this controversy by establishing an unchangeable and definite
and indisputable boundary would be seen and acknowledged by Her
Majesty's Government, and have a correspondent weight in influencing its
decision. That the advantages of substituting a river for a highland
boundary could not fail to be recognized was apparent from the fact that
Mr. Bankhead's note of 28th December, 1835, suggested the river St. John
from the point in which it is intersected by a due north line drawn from
the monument at the head of the St. Croix to the southernmost source of
that river as a part of the general outline of a conventional boundary.
No difficulty was anticipated on the part of Her Majesty's Government in
understanding the grounds upon which such a proposal was expected to be
entertained by it, since the precedent proposition of Mr. Bankhead, just
adverted to, although professedly based on the principle of an equal
division between the parties, could not be justified by it, as it would
have given nearly two-thirds of the disputed territory to Her Majesty's
Government. It was therefore fairly presumed that the river line
presented, in the opinion of Her Majesty's Government, advantages
sufficient to counterbalance any loss of territory by either party that
would follow its adoption as a boundary. Another recommendation of the
river line, it was supposed, would be found by Her Majesty's Government
in the fact that whilst by its adoption the right of jurisdiction alone
would have been yielded to the United States over that portion of New
Brunswick south of the St. John, Great Britain would have acquired the
right of soil as well as of jurisdiction of the whole portion of the
disputed territory north of the river. It is to be lamented that the
imposing considerations alluded to have failed in their desired
effect--that the hopes of the President in regard to them have not been
realized, and consequently that Her Britannic Majesty's Government is
not prepared at present to enter into an arrangement of the existing
difference between the two nations upon the basis proposed.
It would seem to the undersigned, from an expression used in Mr. Fox's
late communication, that some misapprehension exists on his part either
as to the object of this Government in asking for information relative
to the manner in which the report of a commission of exploration and
survey might tend to a practical result in the settlement of the
boundary question or as to the distinctive difference between the
American proposal for the appointment of such a commission and the
same proposition when modified to meet the wishes of Her Majesty's
Government. Of the two modes suggested, by direction of the President,
for constituting such a commission, the first is that which is regarded
by Her Majesty's Government with most favor, viz, the commissioners to
be chosen in equal numbers by each of the two parties, with an umpire
selected by some friendly European sovereign to decide on all points on
which they might disagree, with instructions to explore the disputed
territory in order to find within its limits dividing highlands
answering to the description of the treaty of 1783, in a due north or
northwesterly direction from the monument at the head of the St. Croix,
and that a right line drawn between such highlands and said monument
should form so far as it extends a part of the boundary between the two
countries, etc. It is now intimated that Her Majesty's Government will
not withhold its consent to such a commission "if the principle upon
which it is to be formed and the manner in which it is to proceed can be
satisfactorily settled." This condition is partially explained by the
suggestion afterwards made that instead of leaving the umpire to be
chosen by some friendly European power it might be better that he
should be elected by the members of the commission themselves, and a
modification is then proposed that "the commission shall be instructed
to look for highlands which both parties might acknowledge as fulfilling
the conditions of the treaty." The American proposition is intended--and
it agreed to would doubtless be successful--to decide the question of
boundary definitively by the adoption of the highlands reported by the
commissioners of survey, and would thus secure the treaty line. The
British modification looks to no such object. It merely contemplates
a commission of boundary analogous to that appointed under the fifth
article of the treaty of Ghent, and would in all probability prove
equally unsatisfactory in practice. Whether highlands such as are
described in the treaty do or do not exist, it can scarcely be hoped
that those called for by the modified instructions could be found.
The fact that this question is still pending, although more than half
a century has elapsed since the conclusion of the treaty in which it
originated, renders it in the highest degree improbable that the two
Governments can unite in believing that either the one or the other of
the ranges of highlands claimed by the respective parties fulfills the
required conditions of that instrument. The opinions of the parties have
been over and over again expressed on this point and are well known to
differ widely. The commission can neither reconcile nor change these
variant opinions resting on conviction, nor will it be authorized to
decide the difference. Under these impressions of the inefficiency of
such a commission was the inquiry made in the letter of the undersigned
of 5th March, 1836, as to the manner in which the report of the
commission, as proposed to be constituted and instructed by Her
Majesty's Government, was expected to lead to an ultimate settlement of
the question of boundary. The results which the American proposition
promised to secure were fully and frankly explained in previous notes
from the Department of State, and had its advantages not been clearly
understood this Government would not have devolved upon that of Her
Majesty the task of illustrating them. Mr. Fox will therefore see that
although the proposal to appoint a commission had its origin with
this Government the modification of the American proposition was, as
understood by the undersigned, so fundamentally important that it
entirely changed its nature, and that the supposition, therefore, that
it was rather for the Government of the United States than for that
of Great Britain to answer the inquiry referred to is founded in
misapprehension. Any decision made by a commission constituted in the
manner proposed by the United States and instructed to seek for the
highlands of the treaty of 1783 would be binding upon this Government
and could without unnecessary delay be carried into effect; but if the
substitute presented by Her Majesty's Government be insisted on and its
principles be adopted, a resort will then be necessary to the State of
Maine for her assent to all proceedings hereafter in relation to this
matter, since if any arrangement can be made under it it can only be
for a conventional line, to which she must of course be a party.
The undersigned, in conclusion, is instructed to inform Mr. Fox
that if a negotiation be entertained at all upon the inconclusive and
unsatisfactory basis afforded by the British counter proposition or
substitute, which possesses hardly a feature in common with the American
proposition, the President will not venture to invite it unless the
authorities of the State of Maine, to whom, as before stated, it will
be forthwith submitted, shall think it more likely to lead to a final
adjustment of the question of boundary than the General Government deems
it to be, though predisposed to see it in the most favorable light.
The undersigned avails himself of the occasion to renew to Mr. Fox the
assurance of his distinguished consideration.
JOHN FORSYTH.
DEPARTMENT OF STATE,
_Washington, March 1, 1838_.
His Excellency EDWARD KENT,
_Governor of the State of Maine_.
SIR: The discussions between the Federal Government and that of Great
Britain in respect to the northeastern boundary of the United States
have arrived at a stage in which the President thinks it due to the
State of Maine and necessary to the intelligent action of the General
Government to take the sense of that State in regard to the expediency
of opening a direct negotiation for the establishment of a conventional
line, and if it should deem an attempt to adjust the matter of
controversy in that form advisable, then to ask its assent to the same.
With this view and to place the government of Maine in full possession
of the present state of the negotiation and of all the discussions that
have been had upon the subject, the accompanying documents are
communicated, which, taken in connection with those heretofore
transmitted, will be found to contain that information.
The principles which have hitherto governed every successive
Administration of the Federal Government in respect to its powers and
duties in the matter are--
First. That it has power to settle the boundary line in question with
Great Britain upon the principles and according to the stipulations
of the treaty of 1783, either by direct negotiation or, in case of
ascertained inability to do so, by arbitration, and that it is its duty
to make all proper efforts to accomplish this object by one or the other
of those means.
Second. That the General Government is not competent to negotiate,
unless, perhaps, on grounds of imperious public necessity, a
conventional line involving a cession of territory to which the State
of Maine is entitled, or the exchange thereof for other territory not
included within the limits of that State according to the true
construction of the treaty, without the consent of the State.
In these views of his predecessors in office the President fully
concurs, and it is his design to continue to act upon them.
The attention of the Federal Government has, of course, in the first
instance been directed to efforts to settle the treaty line. A
historical outline of the measures which have been successively taken
by it to that end may be useful to the government of Maine in coming
to a conclusion on the proposition now submitted. It will, however, be
unnecessary here to do more than advert to the cardinal features of this
protracted negotiation.
The treaty of peace between the United States of America and His
Britannic Majesty, concluded at Paris in September, 1783, defines the
boundaries of the said States, and the following words, taken from the
second article of that instrument, are intended to designate a part
of the boundary between those States and the British North American
Provinces, viz: "From the northwest angle of Nova Scotia, viz, that
angle which is formed by a line drawn due north from the source of the
St. Croix River to the highlands; along the said highlands which divide
those rivers that empty themselves into the river St. Lawrence from
those which fall into the Atlantic Ocean to the northwesternmost head of
Connecticut River;" ... "east by a line to be drawn along the middle of
the river St. Croix from its mouth in the Bay of Fundy to its source,
and from its source directly north to the aforesaid highlands which
divide the rivers that fall into the Atlantic Ocean from those which
fall into the river St. Lawrence." An immediate execution of some of
the provisions of this treaty was, however, delayed by circumstances on
which it is now unnecessary to dwell, and in November, 1794, a second
treaty was concluded between the two powers. In the meantime, doubts
having arisen as to what river was truly intended under the name of the
St. Croix mentioned in the treaty of peace and forming a part of the
boundary therein described, this question was referred by virtue of
the fifth article of the new treaty to the decision of a commission
appointed in the manner therein prescribed, both parties agreeing to
consider such decision final and conclusive. The commissioners appointed
in pursuance of the fifth article of the treaty of 1794 decided by
their declaration of October 25, 1798, that the northern branch
(Cheputnaticook) of a river called Scoodiac was the true river St. Croix
intended by the treaty of peace.
At the date of the treaty of Ghent, December 24, 1814, the whole of
the boundary line from the source of the river St. Croix to the most
northwesternmost point of the Lake of the Woods still remained
unascertained, and it was therefore agreed to provide for a final
adjustment thereof. For this purpose the appointment of commissioners
was authorized by the fifth article of the treaty of Ghent, with power
to ascertain and determine the northwest angle of Nova Scotia and the
northwestern-most head of Connecticut River, in conformity with the
provisions of the treaty of 1783, and to cause the boundary from the
source of the river St. Croix to the river Iroquois or Cateraguy to be
surveyed and marked according to the said provisions, etc. In the event
of the commissioners differing, or both or either of them failing to
act, the same article made provision for a reference to a friendly
sovereign or state. Commissioners were appointed under this article in
1815-16, but although their sessions continued several years, they were
unable to agree on any of the matters referred to them. Separate reports
were accordingly made to both Governments of the two commissioners in
1822, stating the points on which they differed and the grounds upon
which their respective opinions had been formed. The case having thus
happened which made it necessary to refer the points of difference to a
friendly sovereign or state, it was deemed expedient by the parties to
regulate this reference by a formal arrangement. A convention for the
purpose was therefore concluded on the 29th of September, 1827, and the
two Governments subsequently agreed in the choice of His Majesty the
King of the Netherlands as arbiter, who consented to act as such. The
submission of the points of difference, three in number, was accordingly
made to that Sovereign, and his award, or rather written opinion on the
questions submitted to him, was rendered on the 10th of January, 1831.
On the 7th of December following the President communicated the award
of the arbiter to the Senate of the United States for the advice and
consent of that body as to its execution, and at the same time intimated
the willingness of the British Government to abide by it. The result was
a determination on the part of the Senate not to consider the decision
of His Netherland Majesty obligatory and a refusal to advise and consent
to its execution. They, however, passed a resolution in June, 1832,
advising the President to open a new negotiation with His Britannic
Majesty's Government for the ascertainment of the boundary between the
possessions of the two powers on the northeastern frontier of the United
States according to the definitive treaty of peace. Of the negotiation
subsequent to this event it is deemed proper to take a more particular
notice.
In July the result of the action of the Senate in relation to the award
was communicated to Mr. Bankhead, the British charge d'affaires, and he
was informed that the resolution had been adopted in the conviction that
the sovereign arbiter, instead of deciding the questions submitted to
him, had recommended a specified compromise of them. The Secretary of
State at the same time expressed the desire of the President to enter
into further negotiation in pursuance of the resolution of the Senate,
and proposed that the discussion should be carried on at Washington. He
also said that if the plenipotentiaries of the two parties should fail
in this new attempt to agree upon the line intended by the treaty of
1783 there would probably be less difficulty than before in fixing a
convenient boundary, as measures were in progress to obtain from the
State of Maine more extensive powers than were before possessed, with
a view of overcoming the constitutional obstacles which had opposed
themselves to such an arrangement; and he further intimated that the
new negotiation would naturally embrace the important question of the
navigation of the river St. John.
In April, 1833, Sir Charles R. Vaughan, the British minister,
addressed a note to the Department of State, in which, hopeless of
finding out by a new negotiation an assumed line of boundary which
so many attempts had been fruitlessly made to discover, he wished to
ascertain, first, the principle of the plan of boundary which the
American Government appeared to contemplate as likely to be more
convenient to both parties than those hitherto discussed, and, secondly,
whether any, and what, arrangement for avoiding the constitutional
difficulty alluded to had yet been concluded with the State of Maine.
Satisfactory answers on these points, he said, would enable the British
Government to decide whether it would entertain the proposition, but His
Majesty's Government could not consent to embarrass the negotiation
respecting the boundary by mixing up with it a discussion regarding the
navigation of the St. John as an integral part of the same question or
as necessarily connected with it.
In reply to this note, Mr. Livingston, under date of the 30th of April,
stated that the arrangement spoken of in his previous communication, by
which the Government of the United States expected to be enabled to
treat for a more convenient boundary, had not been effected, and that
as the suggestion in regard to the navigation of the St. John was
introduced merely to form a part of the system of compensations in
negotiating for such a boundary if that of the treaty should be
abandoned, it would not be insisted on.
The proposition of the President for the appointment of a joint
commission, with an umpire, to decide upon all points on which the
two Governments disagree was then presented. It was accompanied by a
suggestion that the controversy might be terminated by the application
to it of the rule for surveying and laying down the boundaries of tracts
and of countries designated by natural objects, the precise situation
of which is not known, viz, that the natural objects called for as
terminating points should first be found, and that the lines should then
be drawn to them from the given points with the least possible departure
from the course prescribed in the instrument describing the boundary.
Two modes were suggested in which such commission might be constituted:
First, that it should consist of commissioners to be chosen in equal
numbers by the two parties, with an umpire selected by some friendly
sovereign from among the most skillful men in Europe; or, secondly, that
it should be entirely composed of such men so selected, to be attended
in the survey and view of the country by agents appointed by the
parties. This commission, it was afterwards proposed, should be
restricted to the simple question of determining the point designated
by the treaty as the highlands which divide the waters that fall into
the Atlantic from those which flow into the St. Lawrence; that these
highlands should be sought for in a north or northwest direction from
the source of the St. Croix, and that a straight line to be drawn from
the monument at the head of that river to those highlands should be
considered, so far as it extends, as a part of the boundary in question.
The commissioners were then to designate the course of the line along
the highlands and to fix on the northwesternmost head of the Connecticut
River.
In a note of 31st May the British minister suggested that this perplexed
and hitherto interminable question could only be set at rest by an
abandonment of the defective description of boundary contained in the
treaty, by the two Governments mutually agreeing upon a conventional
line more convenient to both parties than those insisted upon by the
commissioners under the fifth article of the treaty of Ghent, or that
suggested by the King of the Netherlands.
Mr. McLane remarked in reply (June 5) that the embarrassments in tracing
the treaty boundary had arisen more from the principles assumed and
from the manner of seeking for it than from any real defect in the
description when properly understood; that in the present state of the
business the suggestion of Sir Charles R. Vaughan would add to the
existing difficulties growing out of a want of power in the General
Government under the Constitution of the United States to dispose of
territory belonging to either of the States of the Union without the
consent of the State; that as a conventional line to the south of and
confessedly variant from that of the treaty would deprive the State of
Maine of a portion of the territory she claims, it was not probable
that her consent to it would be given while there remained a reasonable
prospect of discovering the line of the treaty of 1783, and that the
President would not be authorized, after the recent proceedings in the
Senate, to venture now to agree upon a conventional line without such
consent, whilst the proposition submitted in April afforded not only a
fair prospect, but in his opinion the certain means, of ascertaining the
boundary called for by the treaty of 1783 and of finally terminating all
the perplexities which have encompassed that subject.
In February, 1834, Sir Charles R. Vaughan, after submitting certain
observations intended to controvert the positions assumed by the United
States on the subject of the constitutional difficulty by which the
American Government was prevented from acquiescing in the arrangement
recommended by the King of the Netherlands for the settlement of the
boundary in the neighborhood of the St. John, asserted that the two
Governments bound themselves by the convention of September, 1827,
to submit to an arbiter certain points of difference relative to the
boundary between the American and British dominions; that the arbiter
was called on to determine certain questions, and that if he has
determined the greater part of the points submitted to him his decision
on them ought not to be set aside merely because he declares that one
remaining point can not be decided in conformity with the words of the
treaty of 1783, and therefore recommends to the parties a compromise on
that particular point; that the main points referred to the arbiter were
three in number; that upon the second and third of these he made a plain
and positive decision; that upon the remaining point he has declared
that it is impossible to find a spot or to trace a line which shall
fulfill all the conditions required by the words of the treaty for the
northwest angle of Nova Scotia and for the highlands along which the
boundary from that angle is to be drawn; yet that in the course of his
reasoning upon this point he has decided several questions connected
with it upon which the two parties had entertained different views, viz:
"First. The arbiter expresses his opinion that the term 'highlands' may
properly be applied not only to a hilly and elevated country, but to
a tract of land which, without being hilly, divides waters flowing in
different directions, and consequently, according to this opinion, the
highlands to be sought for are not necessarily a range of mountains,
but rather the summit level of the country.
"Second. The arbiter expresses his opinion that an inquiry as to what
were the ancient boundaries of the North American Provinces can be
of no use for the present purpose, because those boundaries were not
maintained by the treaty of 1783 and had in truth never been distinctly
ascertained and laid down.
"Third. The arbiter declares that the northwest angle of Nova Scotia
mentioned in the treaty of 1783 is not a point which was then known
and ascertained; that it is not an angle which is created by the
intersection of any lines of boundary at that time acknowledged as
existing, but that it is an angle still to be found and to be created
by the intersection of new lines, which are hereafter to be drawn in
pursuance of the stipulations of the treaty; and further, that the
nature of the country eastward of the said angle affords no argument
for laying that angle down in one place rather than in another.
"Fourth. He states that no just argument can be deduced for the
settlement of this question from the exercise of the rights of
sovereignty over the fief of Madawaska and over the Madawaska
settlement.
"Fifth. He declares that the highlands contemplated in the treaty should
divide immediately, and not mediately, rivers flowing into the St.
Lawrence and rivers flowing into the Atlantic, and that the word
'divide' requires contiguity of the things to be divided.
"Sixth. He declares that rivers falling into the Bay of Chaleurs and
the Bay of Fundy can not be considered according to the meaning of the
treaty as rivers flowing into the Atlantic, and specifically that the
rivers St. John and Restigouche can not be looked upon as answerable to
the latter description.
"Seventh. He declares that neither the line of boundary claimed by Great
Britain nor that claimed by the United States can be adjudged as the
true line without departing from the principles of equity and justice as
between the two parties."
It was the opinion of His Majesty's Government, Sir Charles alleged,
that the decisions of the arbiter upon the second and third points
referred to him, as well as upon the subordinate questions, ought to be
acquiesced in by the two Governments, and that in any future attempt to
establish a boundary, whether in strict conformity with the words of the
treaty of 1783 or by agreeing to the mode of settlement recommended by
the arbiter, it would be necessary to adopt these seven decisions as
a groundwork for further proceedings; that the British Government,
therefore, previously to any further negotiation, claimed from the
Government of the United States an acquiescence in the decisions
pronounced by the arbiter upon all those points which he had decided,
and as a preliminary to any attempt to settle the remaining point by
negotiation to be satisfied that the Federal Government was possessed of
the necessary powers to carry into effect any arrangement upon which the
two parties might agree.
With respect to the proposition made by the American Government, Sir
Charles thought that the difficulty which was found insurmountable as
against the line recommended by the King of the Netherlands, viz., the
want of authority to agree to any line which might imply a cession of
any part of the territory to which the treaty as hitherto interpreted by
the United States might appear to entitle one of the component States of
the Union, would be equally fatal to that suggested by Mr. Livingston,
since a line drawn from the head of the St. Croix to highlands found to
the westward of the meridian of that spot would not be the boundary of
the treaty and might be more justly objected to by Maine and with more
appearance of reason than that proposed by the arbiter.
The reply of Mr. McLane to the preceding note is dated on the 11th of
March. He expressed his regret that His Britannic Majesty's Government
should still consider any part of the opinion of the arbiter obligatory
on either party. Those opinions, the Secretary stated, could not have
been carried into effect by the President without the concurrence of the
Senate, who, regarding them not only as not determining the principal
object of the reference, but as in fact deciding that object to be
impracticable, and therefore recommending to the two parties a boundary
not even contemplated either by the treaty or by the reference nor
within the power of the General Government to take, declined to give
their advice and consent to the execution of the measures recommended by
the arbiter, but did advise the Executive to open a new negotiation for
the ascertainment of the boundary in pursuance of the treaty of 1783,
and the proposition of Mr. Livingston, submitted in his letter of 30th
of April, 1833, accordingly proceeded upon that basis. Mr. McLane denied
that a decision, much less the expression of an opinion, by the arbiter
upon some of the disputed points, but of a character not to settle the
real controversy, was binding upon either party, and he alleged that
the most material point in the line of the true boundary, both as it
respects the difficulty of the subject and the extent of territory and
dominions of the respective Governments, the arbiter not only failed to
decide, but acknowledged his inability to decide, thereby imposing upon
both Governments the unavoidable necessity of resorting to further
negotiation to ascertain the treaty boundary and absolving each party
from any obligation to adopt his recommendations. The Secretary also
declined to admit that of the three main points referred to the arbiter
as necessary to ascertain the boundary of the treaty he had decided two.
On the first point, Mr. McLane said, it was not contended a decision was
made or that either the angle or the highlands called for by the treaty
was found, and on the third point an opinion merely was expressed that
it would be suitable to proceed to fresh operations to measure the
observed latitude, etc.
The Secretary admitted that if the American proposition should be
acceded to by His Majesty's Government and the commission hereafter to
be appointed should result in ascertaining the true situation of the
boundary called for by the treaty of 1783, that it would be afterwards
necessary, in order to ascertain the true line, to settle the other two
points according to which it should be traced. He therefore offered,
if the American proposition should be acceded to, notwithstanding the
obligatory effect of the decision of the arbiter on the point is denied,
"to take the stream situated farthest to the northwest among those which
fall into the northernmost of the three lakes, the last of which bears
the name of Connecticut Lake, as the north-westernmost head of the
Connecticut River according to the treaty of 1783;" and as it respects
the third point referred to the arbiter, the line of boundary on the
forty-fifth degree of latitude, but upon which he failed to decide, the
President would agree, if the proposition as to the first point was
embraced, to adopt the old line surveyed and marked by Valentine and
Collins in 1771 and 1772.
The Secretary then proceeded to state further and insuperable objections
to an acquiescence by the United States in the opinions supposed to have
been pronounced by the arbiter in the course of his reasoning upon the
first point submitted to him. He remarked that the views expressed
by the arbiter on these subordinate matters could not be regarded as
decisions within the meaning of the reference, but rather as postulates
or premises, by which he arrived at the opinion expressed in regard to
the point in dispute. By an acquiescence in them, therefore, as required
by Great Britain, the United States would reject as erroneous the
conclusion of the arbiter, whilst they would adopt the premises and
reasoning by which it was attained--that the seven postulates or
premises presented as necessary to be considered by the United States
are but part of those on which the arbiter was equally explicit in
the expression of his views, that on others his reasoning might be
considered as more favorable to the pretensions of this Government, and
that no reason was perceived why an acquiescence in his opinions upon
them should not equally apply to all the premises assumed by him and be
binding upon both parties. Mr. McLane was, however, persuaded that there
was no obligation on either Government to acquiesce in the opinion of
the arbiter on any of the matters involved in his premises; that such
acquiescence would defeat the end of the present negotiation, and that
as it appeared to be mutually conceded that the arbiter had not been
able to decide upon the first and most material point so as to make a
binding decision, there could certainly be no greater obligation to
yield to his opinions on subordinate matters merely. The Secretary
further observed that the most material point of the three submitted
to the arbiter was that of the highlands, to which the President's
proposition directly applies, and which are designated in the treaty of
peace as the northwest angle of Nova Scotia, formed by a line drawn due
north from the source of the St. Croix River to the highlands dividing
the rivers, etc.; that the arbiter found it impossible to decide this
point, and therefore recommended a new line, different from that called
for by the treaty of 1783, and which could only be established by
a conventional arrangement between the two Governments; that the
Government of the United States could not adopt this recommendation
nor agree upon a new and conventional line without the consent of the
State of Maine; that the present negotiation proposed to ascertain the
boundary according to the treaty of 1783, and for this purpose, however
attained, the authority of the Government of the United States was
complete; that the proposition offered by the Government of the United
States promised, in the opinion of the President, the means of
ascertaining the true line by discovering the highlands of the treaty,
but the British Government asked the United States as a preliminary
concession to acquiesce in the opinion of the arbiter upon certain
subordinate facts--a concession which would in effect defeat the
sole object, not only of the proposition, but of the negotiation,
viz, the determination of the boundary according to the treaty of 1783
by confining the negotiation to a conventional line, to which this
Government had not the authority to agree. Mr. McLane also said that
if by a resort to the plain rule now recommended it should be found
impracticable to trace the boundary according to the definitive
treaty, it would then be time enough to enter upon a negotiation for a
conventional substitute for it. He stated in answer to the suggestion of
Sir Charles R. Vaughan that the objection urged against the line of the
arbiter would equally lie against that suggested by Mr. Livingston; that
the authority of the Government to ascertain the true line of the treaty
was unquestionable, and that the American proposition, by confining the
course to the natural object, would be a legitimate ascertainment of
that line.
In a note dated 16th March Sir Charles R. Vaughan offered some
observations upon the objections on the part of the United States to
acquiesce in the points previously submitted to the American Government.
He said that the adoption of the views of the British Government by the
Government of the United States was meant to be the groundwork of future
proceedings, whether those proceedings were to be directed to another
attempt to trace the boundary as proposed by the latter or to a division
of the territory depending upon the conventional line. He maintained
that the arbiter had decided, as the British Government asserted, two
out of the three main points submitted for his decision, viz, what
ought to be considered as the northwesternmost head of the Connecticut
(but which the Government of the United States is only willing to admit
conditionally) and the point relative to tracing the boundary along the
forty-fifth degree of latitude. This point, he observed, Mr. McLane
wished to dispose of by adopting the old line of Collins and Valentine,
which was suspected of great inaccuracy by both parties, and the only
motive for retaining which was because some American citizens have made
settlements upon territory that a new survey might throw into the
possession of Great Britain. Sir Charles denied that the acquiescence of
the United States in the seven subordinate points lately submitted by
His Majesty's Government would confine the negotiation to a conventional
line, to which the President had no authority to agree, and affirmed
that not a step could be taken by the commissioners to be appointed
according to Mr. Livingston's proposition, notwithstanding the
unlimited discretion which it was proposed to give them, unless the
two Governments agreed upon two of the seven subordinate points--"the
character of the land they are to discover as dividing waters according
to the treaty of 1783 and what are to be considered as Atlantic rivers."
In answer to Mr. McLane's observation that on many points the reasoning
of the arbiter had been more favorable to the United States than to
Great Britain, and that therefore acquiescence should equally apply to
all the premises assumed, Sir Charles expressed his confidence that if
acquiescence in them could facilitate the object which now occupied both
Governments they would meet with the most favored consideration. Sir
Charles adverted to the obligations contracted under the seventh article
of the convention, to the opinion of His Majesty's Government that they
were binding and its willingness to abide by the award of the arbiter.
He referred to the small majority by which he supposed the award to have
been defeated in the Senate of the United States and a new negotiation
advised to be opened, to the complicated nature of the plan proposed
by the United States for another attempt to trace the boundary of
the treaty, to the rejection of the points proposed by the British
Government to render that plan more practicable, etc., and regretted
sincerely that the award of the arbiter, which conferred upon the United
States three-fifths of the disputed territory, together with Rouses
Point--a much greater concession than is ever likely to be obtained
by a protracted negotiation--was set aside. An alleged insuperable
constitutional difficulty having occasioned the rejection of the award,
Sir Charles wished to ascertain previously to any further proceedings
how far the General Government had the power to carry into effect any
arrangement resulting from a new negotiation, the answer of Mr. McLane
upon this point having been 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 from the
monument at the source of the St. Croix would be such a fulfillment of
the terms of that treaty that the President could agree to make it the
boundary without reference to the State of Maine.
Mr. McLane, under date of 21st March, corrected the error into which Sir
Charles had fallen in regard to the proceedings on the award in the
Senate of the United States, and showed that that body not only failed,
but by two repeated votes of 35 and 34 to 8 refused, to consent to the
execution of the award, and by necessary implication denied its binding
effect upon the United States, thus putting it out of the power of the
President to carry it into effect and leaving the high parties to the
submission situated precisely as they were prior to the selection of the
arbiter.
The President had perceived, Mr. McLane said, in all the previous
efforts to adjust the boundary in accordance with the terms of the
treaty of 1783 that a natural and uniform rule in the settlement of
disputed questions of location had been quite overlooked; that the
chief, if not only, difficulty arose from a supposed necessity of
finding highlands corresponding with the treaty description in a due
north line from the monument, but it was plain that if such highlands
could be anywhere discovered it would be a legal execution of the treaty
to draw a line to them from the head of the St. Croix without regard to
the precise course given in the treaty. It therefore became his duty to
urge the adoption of this principle upon the Government of His Britannic
Majesty as perhaps the best expedient which remained for ascertaining
the boundary of the treaty of 1783. The Secretary could not perceive
in the plan proposed anything so complicated as Sir Charles appeared
to suppose. On the contrary, it was recommended to approbation and
confidence by its entire simplicity. It chiefly required the discovery
of the highlands called for by the treaty, and the mode of reaching
them upon the principle suggested was so simple that no observations
could make it plainer. The difficulty of discovering such highlands,
Mr. McLane said, was presumed not to be insuperable. The arbiter himself
was not understood to have found it impracticable to discover highlands
answering the description of the highlands of the treaty, though unable
to find them due north from the monument; and certainly it could not be
more difficult for commissioners on the spot to arrive at a conclusion
satisfactory to their own judgment as to the locality of the highlands.
Mr. McLane, in answer to Sir Charles's request for information on the
subject, stated that the difficulty in the way of the adoption of
the line recommended by the arbiter was the want of authority in the
Government of the United States to agree to a line not only confessedly
different from the line called for by the treaty, but which would
deprive the State of Maine of a portion of territory to which she would
be entitled according to the line of the definitive treaty; that by the
President's proposition a commission would be raised, not to establish
a new line differing from the treaty of 1783, but to determine what
the true and original boundary was and in which of the two disagreeing
parties the right to the disputed territory originally was; that for
this purpose the authority of the original commissioners, if they could
have agreed, was complete under the Ghent treaty, and that of the new
commission proposed to be constituted could not be less.
Sir Charles R. Vaughan explained, under date of the 24th of March, with
regard to his observation "that the mode in which it was proposed by the
United States to settle the boundary was complicated; that he did not
mean to apply it to the adoption of a rule in the settlement of disputed
questions of location, but to the manner in which it is proposed by the
United States that the new commission of survey shall be selected and
constituted."
On the 8th of December, 1834, Sir Charles R. Vaughan transmitted a note
to the Department of State, in which, after a passing expression of the
regret of His Majesty's Government that the American Government still
declined to come to a separate understanding on the several points of
difference with respect to which the elements of decision were fully
before both Governments, but without abandoning the argument contained
in his note of 10th February last, he addressed himself exclusively to
the American proposition for the appointment of a new commission to be
empowered to seek westward of the meridian of the St. Croix highlands
answering to the description of those mentioned in the treaty of 1783.
He stated with regard to the rule of surveying on which the proposition
was founded that however just and reasonable it might be, His Majesty's
Government did not consider it so generally established and recognized
as Mr. McLane assumed it to be; that, indeed, no similar case was
recollected in which the principle asserted had been put in practice;
yet, on the contrary, one was remembered not only analogous to that
under discussion, but arising out of the same article of the same
treaty, in which the supposed rule was invested by the agents of the
American Government itself; that the treaty of 1783 declared that the
line of boundary was to proceed from the Lake of the Woods "in a due
west course to the Mississippi," but it being ascertained that such
a line could never reach that river, since its sources lie south of
the latitude of the Lake of the Woods, the commissioners, instead of
adhering to the natural object--the source of the Mississippi--and
drawing a new connecting line to it from the Lake of the Woods, adhered
to the arbitrary line to be drawn due west from the lake and abandoned
the Mississippi, the specific landmark mentioned in the treaty.
Sir Charles further stated that if the President was persuaded that he
could carry out the principle of surveying he had proposed without the
consent of Maine, and if no hope remained, as was alleged by Mr. McLane,
of overcoming the constitutional difficulty in any other way until at
least this proposition should have been tried and have failed, His
Majesty's Government, foregoing their own doubts on the subject, were
ready to acquiesce in the proceeding proposed by the President if that
proceeding could be carried into effect in a manner not otherwise
objectionable; that "His Majesty's Government would consider it
desirable that the principles on which the new commissioners would have
to conduct their survey should be settled beforehand by a special
convention between the two Governments;" that there was, indeed, one
preliminary question upon which it was obviously necessary the two
Governments should agree before the commission could begin their survey
with any chance of success, viz, What is the precise meaning to be
attached to the words employed in the treaty to define the highlands
which the commissioners are to seek for? that those highlands are to be
distinguished from other highlands by the rivers flowing from them, and
those distinguishing rivers to be known from others by the situation
of their mouths; that with respect to the rivers flowing south into
the Atlantic Ocean a difference of opinion existed between the two
Governments; that whilst the American Government contended that rivers
falling into the Bay of Fundy were, the British Government contended
that they were not, for the purposes of the treaty, rivers falling into
the Atlantic Ocean, and that the views and arguments of the British
Government on this point had been confirmed by an impartial authority
selected by the common consent of the two Governments, who was of
opinion that the rivers St. John and Restigouche were not Atlantic
rivers within the meaning of the treaty, and that His Majesty's
Government therefore trusted that the American Cabinet would concur with
that of His Majesty in deciding "that the Atlantic rivers which are to
guide the commissioners in searching for the highlands described in the
treaty are those which fall into the sea to the westward of the mouth of
the river St. Croix;" that a clear agreement on this point must be an
indispensable preliminary to the establishment of any new commission
of survey; that till this point be decided no survey of commissioners
could lead to a useful result, but that its decision turns upon the
interpretation of the words of a treaty, and not upon the operations of
surveyors; and His Majesty's Government, having once submitted it, in
common with other points, to the judgment of an impartial arbiter, by
whose award they had declared themselves ready to abide, could not
consent to refer it to any other arbitration.
In a note from the Department of State dated 28th April, 1835, Sir
Charles R. Vaughan was assured that his prompt suggestion, as His
Britannic Majesty's minister, that a negotiation should be opened for
the establishment of a conventional boundary between the two countries
was duly appreciated by the President, who, had he possessed like powers
with His Majesty's Government over the subject, would have met the
suggestion in a favorable spirit.
The Secretary observed that the submission of the whole subject or
any part of it to a new arbitrator promised too little to attract the
favorable consideration of either party; that the desired adjustment of
the controversy was consequently to be sought for in the application of
some new principle to the controverted question, and that the President
thought that by a faithful prosecution of the plan submitted by his
direction a settlement of the boundary in dispute according to the terms
of the treaty of 1783 was attainable.
With regard to the rule of practical surveying offered as the basis of
the American proposition, he said if it should become material to do
so--which was not to be anticipated--he would find no difficulty either
in fortifying the ground occupied by this Government in this regard or
in satisfying Sir Charles that the instance brought into notice by His
Britannic Majesty's Government of a supposed departure from the rule
was not at variance with the assertion of Mr. Livingston repeated by
Mr. McLane. The Secretary therefore limited himself to the remark that
the line of demarcation referred to by Sir Charles was not established
as the true boundary prescribed by the treaty of 1783, but was a
conventional substitute for it, the result of a new negotiation
controlled by other considerations than those to be drawn from that
instrument only.
The Secretary expressed the President's unfeigned regret upon learning
the decision of His Majesty's Government not to agree to the proposition
made on the part of the United States without a precedent compliance
by them with inadmissible conditions. He said that the views of this
Government in regard to this proposal of His Majesty's Government had
been already communicated to Sir Charles R. Vaughan, and the President
perceived with pain that the reasons upon which these opinions were
founded had not been found to possess sufficient force and justice to
induce the entire withdrawal of the objectionable conditions, but that,
on the contrary, while His Majesty's Government had been pleased to
waive for the present six of the seven opinions referred to, the
remaining one, amongst the most important of them all, was still
insisted upon, viz, that the St. John and Restigouche should be treated
by the supposed commission as not being Atlantic rivers according to the
meaning of those terms in the treaty. With reference to that part of Sir
Charles's communication which seeks to strengthen the ground heretofore
taken on this point by the British Government by calling to its aid the
supposed confirmation of the arbiter, the Secretary felt himself
warranted in questioning whether the arbiter had ever given his opinion
that the rivers St. John and Restigouche can not be considered according
to the meaning of the treaty as rivers falling into the Atlantic, and he
insisted that it was not the intention of the arbiter to express the
opinion imputed to him.
The Secretary also informed Sir Charles that the President could not
consent to clog the submission with the condition proposed by Her
Majesty's Government; that a just regard to the rights of the parties
and a proper consideration of his own duties required that the new
submission, if made, should be made without restriction or qualification
upon the discretion of the commissioners other than such as resulted
from established facts and the just interpretation of the definitive
treaty, and such as had been heretofore and were now again tendered to
His Britannic Majesty's Government; that he despaired of obtaining a
better constituted tribunal than the one proposed; that he saw nothing
unfit or improper in submitting the question as to the character in
which the St. John and Restigouche were to be regarded to the decision
of an impartial commission; that the parties had heretofore thought it
proper so to submit it, and that it by no means followed that because
commissioners chosen by the parties themselves, without an umpire, had
failed to come to an agreement respecting it, that the same result would
attend the efforts of a commission differently selected. The Secretary
closed his note by stating that the President had no new proposal
to offer, but would be happy to receive any such proposition as His
Britannic Majesty's Government might think it expedient to make, and by
intimating that he was authorized to confer with Sir Charles whenever
it might suit his convenience and comport with the instructions of his
Government with respect to the treaty boundary or a conventional
substitute for it.
On the 4th of May, 1835, Sir Charles R. Vaughan expressed his regret
that the condition which His Majesty's Government had brought forward as
an essential preliminary to the adoption of the President's proposal had
been declared to be inadmissible by the American Government.
Sir Charles confidently appealed to the tenor of the language of the
award of the arbiter to justify the inference drawn from it by His
Majesty's Government in regard to that point in the dispute which
respects the rivers which are to be considered as falling directly
into the Atlantic. The acquiescence of the United States in what was
understood to be the opinion of the arbiter was invited, he said,
because the new commission could not enter upon their survey in search
of the highlands of the treaty without a previous agreement between
the two Governments what rivers ought to be considered as falling into
the Atlantic, and that if the character in which the Restigouche and
St. John were to be regarded was a question to be submitted to the
commissioners the President's proposition would assume the character of
a new arbitration, which had been already objected to by the Secretary.
Sir Charles also stated that while His Majesty's Government had wished
to maintain the decisions of the arbiter on subordinate points, their
mention had not been confined to those decided in favor of British
claims; that the decisions were nearly balanced in favor of either
party, and the general result of the arbitration was so manifestly in
favor of the United States that to them were assigned three-fifths of
the territory in dispute and Rouses Point, to which they had voluntarily
resigned all claim.
Sir Charles acknowledged with much satisfaction the Secretary's
assurance that if the President possessed the same power as His
Majesty's Government over the question of boundary he would have met
the suggestion of a conventional line, contained in Sir Charles's note
of 31st May, 1833, in a favorable spirit. He lamented that the two
Governments could not coincide in the opinion that the removal of the
only difficulty in the relations between them was attainable by the last
proposal of the President, as it was the only one in his power to offer
in alleviation of the task of tracing the treaty line, to which the
Senate had advised that any further negotiation should be restricted.
He said that he was ready to confer with the Secretary whenever it might
be convenient to receive him, and stated that as to any proposition
which it might be the wish of the United States to receive from His
Majesty's Government respecting a conventional substitute for the treaty
of 1783, it would in the first instance, to avoid constitutional
difficulties in the way of the Executive, be necessary to obtain the
consent of Maine, an object which must be undertaken exclusively by the
General Government of the United States.
Mr. Bankhead, the British charge d'affaires, in a note to the Department
dated 28th December, 1835, stated that during the three years which had
elapsed since the refusal of the Senate to agree to the award of the
King of the Netherlands, although the British Government had more than
once declared its readiness to abide by its offer to accept the award,
the Government of the United States had as often replied that on its
part that award could not be agreed to; that the British Government
now considered itself by this refusal of the United States fully and
entirely released from the conditional offer which it had made, and
that he was instructed distinctly to announce to the President that
the British Government withdrew its consent to accept the territorial
compromise recommended by the King of the Netherlands.
With regard to the American proposition for the appointment of a new
commission of exploration and survey, Mr. Bankhead could not see, since
the President found himself unable to admit the distinction between the
Bay of Fundy and the Atlantic Ocean, how any useful result could arise
out of the proposed survey. He thought, on the contrary, that if it did
not furnish fresh subjects of difference between the two Governments it
could at best only bring the subject back to the same point at which it
now stood.
To the suggestion of the President that the commission of survey should
be empowered to decide the river question Mr. Bankhead said it was not
in the power of His Majesty's Government to assent; that this question
could not properly be referred to such a commission, because it turned
upon the interpretation to be put upon the words of the treaty of 1783,
and upon the application of that interpretation to geographical facts
already well known and ascertained, and that therefore a commission of
survey had no peculiar competency to decide such a question; that to
refer it to any authority would be to submit it to a fresh arbitration,
and that if His Majesty's Government were prepared to agree to a fresh
arbitration, which was not the case, such arbitration ought necessarily,
instead of being confined to one particular point alone, to include all
the points in dispute between the two Governments; that His Majesty's
Government could therefore 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 "the commissioners should be instructed to
search for highlands upon the character of which no doubt could exist
on either side."
If this modification of the President's proposal should not prove
acceptable, Mr. Bankhead observed, the only remaining way of adjusting
the difference would be to abandon altogether the attempt to draw a line
in conformity with the words of the treaty and to fix upon a convenient
line, to be drawn according to equitable principles and with a view to
the respective interests and the convenience of the two parties. He
stated that His Majesty's Government were perfectly ready to treat for
such a line, and conceived that the natural features of the disputed
territory would afford peculiar facilities for drawing it; that His
Majesty's Government would therefore propose an equal division of the
territory in dispute between Great Britain and the United States, and
that the general outline of such a division would be that the boundary
between the two States should be drawn due north from the head of St.
Croix River till it intersected the St. John; thence up the bed of the
St. John 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.
In reply to the preceding note the Secretary, under date of February 29,
1836, expressed the President's regret to find that His Britannic
Majesty's Government adhered to its objection to the appointment of a
commission to be chosen in either of the modes heretofore proposed by
the United States and his conviction that the proposition on which it
was founded, "that the river question was a treaty construction only,"
although repeated on various occasions by Great Britain, was
demonstrably untenable, and, indeed, only plausible when material and
most important words of description in the treaty are omitted in quoting
from that instrument. He said that while His Majesty's Government
maintain their position agreement between the United States and Great
Britain on this point was impossible; that the President was therefore
constrained to look to the new and conventional line offered in Mr.
Bankhead's note, but that in such a line the wishes and interests of
Maine were to be consulted, and that the President could not in justice
to himself or that State make any proposition utterly irreconcilable
with her previously well-known opinions on the subject; that the
principle of compromise and equitable division was adopted by the King
of the Netherlands in the line recommended by him, a line rejected by
the United States because unjust to Maine; and yet that line gave to
Great Britain little more than 2,000,000, while the proposition now made
by His Majesty's Government secured to Great Britain of the disputed
land more than 4,000,000 acres; that the division offered by Mr.
Bankhead's note was not in harmony with the equitable rule from which
it is said to spring, and if it were in conformity with it could not
be accepted without disrespect to the previous decisions and just
expectations of Maine. The President was far from attributing this
proposition, the Secretary said, to the desire of His Majesty's
Government to acquire territory. He doubted not that the offer, without
regard to the extent of territory falling to the north or south of the
St. John, was made by His Majesty's Government from a belief that the
substitution of a river for a highland boundary would be useful in
preventing territorial disputes in future; but although the President
coincided in this view of the subject he was compelled to decline the
boundary proposed as inconsistent with the known wishes, rights, and
decisions of the State.
The Secretary concluded by stating that the President, with a view to
terminate at once all controversy, and without regard to the extent of
territory lost by one party or acquired by the other, to establish a
definite and indisputable line, would, if His Majesty's Government
assented to it, apply to the State of Maine for its consent to make the
river St. John from its source to its mouth the boundary between Maine
and His Britannic Majesty's dominions in that part of North America.
Mr. Bankhead acknowledged on the 4th March, 1836, the receipt of
this note from the Department, and said that the rejection of the
conventional line proposed in his previous note would cause His
Majesty's Government much regret. He referred the Secretary to that
part of his note of the 28th December last wherein the proposition of
the President for a commission of exploration and survey was fully
discussed, as it appeared to Mr. Bankhead that the Secretary had not
given the modification on the part of His Majesty's Government of the
American proposition the weight to which it was entitled. He said that
it was offered with the view of meeting as far as practicable the wishes
of the President and of endeavoring by such a preliminary measure to
bring about a settlement of the boundary upon a basis satisfactory to
both parties; that with this view he again submitted to the Secretary
the modified proposal of His Majesty's Government, remarking that the
commissioners who might be appointed were not to _decide_ upon points
of difference, but merely to present to the respective Governments the
result of their labors, which, it was hoped and believed, would pave
the way for an ultimate settlement of the question.
Mr. Bankhead considered it proper to state frankly and clearly that the
proposition offered in the last note from the Department to make the
river St. John from its source to its mouth the boundary between the
United States and His Majesty's Province of New Brunswick was one to
which the British Government, he was convinced, would never agree.
On the 5th March the Secretary expressed regret that his proposition to
make the river St. John the boundary between Maine and New Brunswick
would, in the opinion of Mr. Bankhead, be declined by his Government;
that the Government of the United States could not, however, relinquish
the hope that the proposal, when brought before His Majesty's cabinet
and considered with the attention and deliberation due to its merits,
would be viewed in a more favorable light than that in which it appeared
to have presented itself to Mr. Bankhead. If, however, the Secretary
added, this expectation should be disappointed, it would be necessary
before the President consented to the modification of his previous
proposition for the appointment of a commission of exploration and
survey to be informed more fully of the views of the British Government
in offering the modification, so that he might be enabled to judge how
the report of the commission (which as now proposed to be constituted
was not to decide upon points of difference) would be likely to lead
to an ultimate settlement of the question of boundary, and also which
of the modes proposed for the selection of commissioners was the one
intended to be accepted, with the modification suggested by His
Britannic Majesty's Government.
In January last Mr. Fox, the British minister at Washington, made a
communication to the Department of State, in which, with reference to
the objection preferred by the American Government that it had no power
without the consent of Maine to agree to the arrangement proposed by
Great Britain, since it would be considered by that State as equivalent
to a cession of what she regarded as a part of her territory, he
observed that the objection of the State could not be admitted as valid,
for the principle on which it rested was as good for Great Britain as
it was for Maine; that if the State was entitled to contend that until
the treaty line was determined the boundary claimed by Maine must be
regarded as the right one, Great Britain was still more entitled to
insist on a similar pretension and to assert that until the line of the
treaty shall be established satisfactorily the whole of the disputed
territory ought to be considered as belonging to the British Crown,
since Great Britain was the original possessor, and all the territory
which had not been proved to have been by treaty ceded by her must be
deemed to belong to her still. But Mr. Fox said the existence of these
conflicting pretensions pointed out the expediency of a compromise; and
why, he asked, as a conventional line different from that described in
the treaty was agreed to with respect to the boundary westward from the
Lake of the Woods, should such a line not be agreed to likewise for the
boundary eastward from the Connecticut? Her Majesty's Government could
not, he added, refrain from again pressing this proposition upon the
serious consideration of the United States as the arrangement best
calculated to effect a prompt and satisfactory settlement between
the two powers.
With reference to the American proposition to make the river St. John
from its mouth to its source the boundary, Mr. Fox remarked that it was
difficult to understand upon what grounds any expectation could have
been formed that such a proposal could be entertained by the British
Government, for such an arrangement would give to the United States
even greater advantages than they would obtain by an unconditional
acquiescence in their claim to the whole of the disputed territory,
because it would give to Maine all the disputed territory lying south of
the St. John, and in exchange for the remaining part of the territory
lying to the north of the St. John would add to the State of Maine a
large district of New Brunswick--a district smaller in extent, but much
more considerable in value, than the portion of the disputed territory
which lies to the north of the St. John.
With regard to the proposition for the appointment of a commission of
exploration and survey, Mr. Fox stated that Her Majesty's Government,
with little expectation that it could lead to a useful result, but
unwilling to reject the only plan left which seemed to afford a chance
of making a further advance in this matter, would not withhold their
consent to such a commission if the principle upon which it was to be
formed and the manner in which it was to proceed could be satisfactorily
settled; that of the two modes proposed in which such a commission might
be constituted Her Majesty's Government thought the first, viz, that it
might consist of commissioners named in equal numbers by each of the two
Governments, with an umpire to be selected by some friendly European
power, would be the best, but suggested that it might be better that the
umpire should be selected by the members of the commission themselves
rather than that the two Governments should apply to a third power
to make such a choice; that the object of this commission should be
to explore the disputed territory in order to find within its limits
dividing highlands which might answer the description of the treaty, the
search to be made in a north and northwest line from the monument at
the head of the St. Croix; and that Her Majesty's Government had given
their opinion that the commissioners should be instructed to look for
highlands which both parties might acknowledge as fulfilling the
conditions of the treaty.
In answer to the inquiry how the report of the commission would,
according to the views of Her Majesty's Government, be likely when
rendered to lead to an ultimate settlement of the boundary question,
Mr. Fox observed that since the proposal for the appointment of a
commission originated with the Government of the United States, it
was rather for that Government than the Government of Great Britain to
answer this question. Her Majesty's Government had already stated they
had little expectation that such a commission could lead to any useful
result, etc., but that Her Majesty's Government, in the first place,
conceived that it was meant by the Government of the United States that
if the commission should discover highlands answering to the description
of the treaty a connecting line from them to the head of the St. Croix
should be deemed to be a portion of the boundary between the two
countries. Mr. Fox further referred the Secretary to the previous notes
of Mr. McLane on the subject, in which it was contemplated as one of
the possible results of the proposed commission that such additional
information might be obtained of the features of the country as might
remove all doubt as to the impracticability of laying down a boundary
in accordance with the letter of the treaty. Mr. Fox said that if
the investigations of the commission should show that there was no
reasonable prospect of finding the line described in the treaty of 1783
the constitutional difficulties which now prevented the United States
from agreeing to a conventional line might possibly be removed, and the
way be thus prepared for a satisfactory settlement of the difference by
equitable division of the territory; but, he added in conclusion, if the
two Governments should agree to the appointment of such a commission,
it would be necessary that their agreement should be by a convention,
and it would be obviously indispensable that the State of Maine should
be an assenting party to the arrangement.
In acknowledging the receipt of Mr. Fox's communication at the
Department he was informed (7th February) that the President
experienced deep disappointment in finding that the answer just
presented on the part of the British Government to the proposition
made by this Government with the view of effecting the settlement of
the boundary question was so indefinite in its terms as to render it
impracticable to ascertain without further discussion what were the
real wishes and intentions of Her Majesty's Government respecting the
appointment of a commission of exploration and survey, but that a copy
of it would be transmitted to the executive of Maine for the purpose of
ascertaining the sense of the State authorities upon the expediency of
meeting the views of Her Majesty's Government so far as they were
therein developed.
Occasion was taken at the same time to explain to Mr. Fox, in answer
to the suggestion in his note of the 10th of January last, that the
parallel of latitude adopted as a conventional substitute for the line
designated in the treaty for the boundary westward from the Lake of the
Woods passed over territory within the exclusive jurisdiction of the
General Government, without trenching upon the rights or claims of
any member of the Union, and the legitimate power of the Government,
therefore, to agree to such line was held to be perfect, but that in
acceding to a conventional line for the boundary eastward from the river
Connecticut it would transcend its constitutional powers, since such a
measure could only be carried into effect by violating the jurisdiction
of a sovereign State and assuming to alienate a portion of the territory
claimed by such State.
In reply to the observation of Mr. Fox that it was difficult to
understand upon what ground an expectation could have been entertained
that the proposition to make the St. John the boundary would be received
by Her Majesty's Government, he was informed that the suggestion had
been offered, as the proposition on the part of Great Britain that led
to it was supposed to have been, with regard to the extent of territory
lost or acquired by the respective parties, and in the hope that the
great importance of terminating this controversy by establishing a
definite and indisputable boundary would be seen and acknowledged by the
British Government, and have a correspondent weight in influencing its
decision; that the suggestion in Mr. Bankhead's note of 28th December,
1835, of a part of the river St. John as a portion of the general
outline of a conventional boundary, apparently recognized the superior
advantages of a river over a highland boundary, and that no difficulty
was anticipated on the part of Her Majesty's Government in understanding
the grounds upon which such a proposal was expected to be entertained
by it, since the precedent proposition of Mr. Bankhead just alluded to,
although based upon the principle of an equal division between the
parties, could not be justified by it, as it would have given nearly
two-thirds of the disputed territory to Great Britain; that it was
therefore fair to presume that the river line, in the opinion of His
Majesty's Government, presented advantages sufficient to counterbalance
any loss of territory by either party that might accrue from its
adoption; and it was also supposed that another recommendation of this
line would be seen by Great Britain in the fact that whilst by its
adoption the right of jurisdiction alone would have been yielded to the
United States over that portion of New Brunswick south of the St. John,
Great Britain would have acquired the right of soil and jurisdiction of
all the disputed territory north of that river.
To correct a misapprehension into which Mr. Fox appeared to have fallen,
the distinctive difference between the American proposition for a
commission and that proposition as subsequently modified by Great
Britain was pointed out, and he was informed that although the proposal
originated with this Government, the modification was so fundamentally
important that it entirely changed the nature of the proposition, and
that the supposition, therefore, that it was rather for the Government
of the United States than for that of Great Britain to answer the
inquiry preferred by the Secretary of State for information relative
to the manner in which the report of the commission as proposed to be
constituted and instructed by the British Government might tend to a
practical result was unfounded. Mr. Fox was also given to understand
that any decision made by a commission constituted in the manner
proposed by the United States and instructed to seek for the highlands
of the treaty of 1783 would be binding upon this Government and could
be carried into effect without unnecessary delay; but if the substitute
presented by Her Majesty's Government should be insisted on and its
principles be adopted, it would then be necessary to resort to the State
of Maine for her assent in all proceedings relative to the matter, since
any arrangement under it can only be for a conventional line to which
she must be a party.
In conclusion, it was intimated to Mr. Fox that if a negotiation be
entertained by this Government at all upon the unsatisfactory basis
afforded by the British counter proposition or substitute, the President
will not invite it unless the authorities of the State of Maine shall
think it more likely to lead to an adjustment of the question of
boundary than the General Government deemed it to be, although
predisposed to see it in the most favorable light.
Your excellency will perceive that in the course of these proceedings,
but without abandoning the attempt to adjust the treaty line, steps
necessary, from the want of power in the Federal Government, of an
informal character, have been taken to test the dispositions of the
respective Governments upon the subject of substituting a conventional
for the treaty line. It will also be seen from the correspondence that
the British Government, despairing of a satisfactory adjustment of
the line of the treaty, avows its willingness to enter upon a direct
negotiation for the settlement of a conventional line if the assent
of the State of Maine to that course can be obtained.
Whilst the obligations of the Federal Government to do all in its power
to effect a settlement of this boundary are fully recognized on its
part, it has in the event of its being unable to do so specifically by
mutual consent no other means to accomplish the object amicably than by
another arbitration, or a commission, with an umpire, in the nature of
an arbitration. In the contingency of all other measures failing the
President will feel it to be his duty to submit another proposition to
the Government of Great Britain to refer the decision of the question to
a third party. He would not, however, be satisfied in taking this final
step without having first ascertained the opinion and wishes of the
State of Maine upon the subject of a negotiation for the establishment
of a conventional line, and he conceives the present the proper time
to seek it.
I am therefore directed by the President to invite your excellency to
adopt such measures as you may deem necessary to ascertain the sense
of the State of Maine with respect to the expediency of attempting to
establish a conventional line of boundary between that State and the
British possessions by direct negotiation between the Governments of
the United States and Great Britain, and whether the State of Maine
will agree, and upon what conditions, if she elects to prescribe any,
to abide by such settlement if the same be made. Should the State of
Maine be of opinion that additional surveys and explorations might
be useful either in leading to a satisfactory adjustment of the
controversy according to the terms of the treaty or in enabling the
parties to decide more understandingly upon the expediency of opening
a negotiation for the establishment of a line that would suit their
mutual convenience and be reconcilable to their conflicting interests,
and desire the creation for that purpose of a commission upon the
principles and with the limited powers described in the letter of
Mr. Fox, the President will without hesitation open a negotiation
with Great Britain for the accomplishment of that object.
I have the honor to be, with high consideration, your excellency's
obedient servant,
JOHN FORSYTH.
WASHINGTON, _April 5, 1838_.
_To the House of Representatives of the United States_:
I herewith transmit to the House of Representatives a report from the
Secretary of State, with accompanying papers, in answer to their
resolution of the 21st ultimo.
M. VAN BUREN.
DEPARTMENT OF STATE,
_Washington, April 4, 1838_.
The PRESIDENT OF THE UNITED STATES:
The Secretary of State, to whom has been referred the resolution of the
House of Representatives of the 21st ultimo, requesting the President,
"if not incompatible with the public interests, to communicate to that
House any information possessed by him respecting the capture and
destruction of the steamboat _Caroline_ at Schlosser during the night of
the 29th December last, and the murder of citizens of the United States
on board, and all the particulars thereof not heretofore communicated,
and especially to inform the House whether said capture was authorized,
commanded, or sanctioned or has been avowed by the British authorities
or officers, or any of them, and also what steps have been taken by him
to obtain satisfaction from the Government of Great Britain on account
of said outrage, and to communicate to the House all correspondence or
communications relative thereto which have passed between the Government
of the United States and Great Britain, or any of the public authorities
of either," has the honor to lay before the President the accompanying
documents, which contain all the information in the possession of this
Department relative to the subject of the resolution; and to state,
moreover, that instructions have been transmitted to the minister of the
United States in London to make a full representation to Her Britannic
Majesty's Government of the facts connected with this lamentable
occurrence, to remonstrate against the unwarrantable course pursued
on the occasion by the British troops from Canada, and to express the
expectation of this Government that such redress as the nature of the
case obviously requires will be promptly given.
Respectfully submitted.
JOHN FORSYTH.
_Mr. Forsyth to Mr. Fox_.
DEPARTMENT OF STATE,
_Washington, January 5, 1838_.
HENRY S. FOX, Esq., etc.
SIR: By the direction of the President of the United States, I have the
honor to communicate to you a copy of the evidence furnished to this
Department of an extraordinary outrage committed from Her Britannic
Majesty's Province of Upper Canada on the persons and property of
citizens of the United States within the jurisdiction of the State of
New York. The destruction of the property and the assassination of
citizens of the United States on the soil of New York at the moment
when, as is well known to you, the President was anxiously endeavoring
to allay the excitement and earnestly seeking to prevent any unfortunate
occurrence on the frontier of Canada have produced upon his mind the
most painful emotions of surprise and regret. It will necessarily form
the subject of a demand for redress upon Her Majesty's Government.
This communication is made to you under the expectation that through
your instrumentality an early explanation may be obtained from the
authorities of Upper Canada of all the circumstances of the transaction,
and that by your advice to those authorities such decisive precautions
may be used as will render the perpetration of similar acts hereafter
impossible. Not doubting the disposition of the government of Upper
Canada to do its duty in punishing the aggressors and preventing future
outrage, the President nevertheless has deemed it necessary to order
a sufficient force on the frontier to repel any attempt of a like
character and to make known to you that if it should occur he can not be
answerable for the effects of the indignation of the neighboring people
of the United States.
I avail myself of this occasion, etc.
JOHN FORSYTH.
_Mr. Forsyth to Mr. Fox_.
DEPARTMENT OF STATE,
_Washington, January 9, 1838_.
HENRY S. FOX, Esq., etc.
SIR: With reference to my note of the 5th instant, communicating to
you evidence of an extraordinary outrage committed from Her Britannic
Majesty's Province of Upper Canada on the persons and property of
certain citizens of the United States at Schlosser, within the
jurisdiction of the State of New York, on the night of the 29th ultimo,
I have now the honor to transmit to you the copy of a letter[26]
recently received from the attorney of the United States for the
northern district of New York, dated the 8th of the current month, with
transcripts of sundry depositions[26] which accompanied it, containing
additional information in regard to that most disastrous occurrence. A
letter from Mr. George W. Pratt of the 10th of January, with inclosures
relating to the same subject, is also sent.
I avail myself of this occasion to renew to you the assurance of my
distinguished consideration.
JOHN FORSYTH.
[Footnote 26: Omitted.]
ROCHESTER, _January 10, 1838_.
The PRESIDENT.
SIR: Colonel McNab, having avowed that the steamboat _Caroline_ was
destroyed by his orders, justifies himself by the plea, sustained by
affidavits, that hostilities were commenced from the American shore.
I inclose you the affidavits[26] of four respectable citizens of
Rochester, who were present at the time, who contradict the assertions
of Colonel McNab.
I have the honor to be, your obedient servant,
GEO. W. PRATT.
_Mr. Fox to Mr. Forsyth_.
WASHINGTON, _February 6, 1838_.
Hon. JOHN FORSYTH, etc.
SIR: With reference to the letters which, by direction of the President,
you addressed to me on the 5th and 19th ultimo, respecting the capture
and destruction of the steamboat _Caroline_ by a Canadian force on the
American side of the Niagara River, within the jurisdiction of the State
of New York, I have now the honor to communicate to you the copy of a
letter upon that subject which I have received from Sir Francis Head,
lieutenant-governor of the Province of Upper Canada, with divers reports
and depositions annexed.
The piratical character of the steamboat _Caroline_ and the necessity of
self-defense and self-preservation under which Her Majesty's subjects
acted in destroying that vessel would seem to be sufficiently
established.
At the time when the event happened the ordinary laws of the United
States were not enforced within the frontier district of the State of
New York. The authority of the law was overborne publicly by piratical
violence. Through such violence Her Majesty's subjects in Upper Canada
had already severely suffered, and they were threatened with still
further injury and outrage. This extraordinary state of things appears
naturally and necessarily to have impelled them to consult their own
security by pursuing and destroying the vessel of their piratical enemy
wheresoever they might find her.
I avail myself of this occasion to renew to you the assurance of my high
respect and consideration.
H.S. FOX.
TORONTO, UPPER CANADA, _January 8, 1838_.
His Excellency HENRY S. FOX,
_Her Majesty's Minister, Washington_.
SIR: I have the honor to inclose you the copy of a special message sent
by His Excellency Governor Marcy to the legislature of the State of New
York, in relation to a matter on which your excellency will desire the
earliest and most authentic information. The message only reached this
place yesterday, and I lose no time in communicating with your
excellency on the subject.
The governor of the State of New York complains of the cutting out
and burning of the steamboat _Caroline_ by order of Colonel McNab,
commanding Her Majesty's forces at Chippewa, in the Province of Upper
Canada, and of the destruction of the lives of some American citizens
who were on board of the boat at the time she was attacked.
The act complained of was done under the following circumstances:
In Upper Canada, which contains a population of about 450,000 souls, the
most perfect tranquillity prevailed up to the 4th day of December last,
although in the adjoining Province of Lower Canada many of the French
Canadian inhabitants had been in open rebellion against the Government
for about a month preceding.
At no time since the treaty of peace with the United States in 1815 had
Upper Canada been more undisturbed. The real causes of the insurrection
in Lower Canada, namely, the national antipathy of the French
inhabitants, did not in any degree apply in the upper Province, whose
population, like the British and American inhabitants of Lower Canada,
were wholly opposed to the revolt and anxious to render every service in
their power in support of the Queen's, authority.
It had been reported to the Government some time before the 4th of
December that in a remote portion of the home district a number of
persons occasionally met and drilled with arms under leaders known to
be disaffected, but it was not believed by the Government that anything
more could be intended than to make a show of threatened revolt in order
to create a diversion in favor of the rebels in Lower Canada.
The feeling of loyalty throughout this Province was known to be so
prevalent and decided that it was not thought unsafe to forbear, for
the time at least, to take any notice of the proceedings of this party.
On the night of the 4th December the inhabitants of the city of Toronto
were alarmed by the intelligence that about 500 persons armed with
rifles were approaching the city; that they had murdered a gentleman
of great respectability in the highway, and had made several persons
prisoners. The inhabitants rushed immediately to arms; there were no
soldiers in the Province and no militia had been called out. The home
district, from which this party of armed men came, contains 60,000
inhabitants; the city of Toronto 10,000. In a few hours a respectable
force, although undisciplined, was collected and armed in self-defense,
and awaited the threatened attack. It seems now to admit of no doubt
that if they had at once advanced against the insurgents they would have
met with no formidable resistance, but it was thought more prudent to
wait until a sufficient force should be collected to put the success of
an attack beyond question. In the meantime people poured in from all
quarters to oppose the insurgents, who obtained no increase of numbers,
but, on the contrary, were deserted by many of their body in consequence
of the acts of devastation and plunder into which their leader had
forced them.
On the 7th of December an overwhelming force of militia went against
them and dispersed them without losing a man, taking many prisoners,
who were instantly by my order released and suffered to depart to their
homes. The rest, with their leaders, fled; some have since surrendered
themselves to justice; many have been taken, and some have escaped from
the Province.
It was reported about this time that in the district of London a similar
disposition to rise had been observed, and in consequence a militia
force of about 400 men was sent into that district, where it was
speedily joined by three times as many of the inhabitants of the
district, who assembled voluntarily and came to their aid with the
greatest alacrity.
It was discovered that about 300 persons under Dr. Duncombe, an
American by birth, were assembled with arms, but before the militia
could reach them they dispersed themselves and fled. Of these by far the
greater came in immediately and submitted themselves to the Government,
declaring that they had been misled and deceived, and praying for
forgiveness.
In about a week perfect tranquillity was restored, and from that moment
not a man has been seen in arms against the Government in any part of
the Province, with the exception of the hostile aggression upon Navy
Island, which I shall presently notice; nor has there been the slightest
resistance offered to the execution of legal process in a single
instance.
After the dispersion of the armed insurgents near Toronto Mr. McKenzie,
their leader, escaped in disguise to the Niagara River and crossed
over to Buffalo. Reports had been spread there and elsewhere along the
American frontier that Toronto had been burnt and that the rebels were
completely successful, but the falsehood of these absurd rumors was
well known before McKenzie arrived on the American side. It was known
also that the ridiculous attempt of 400 men to revolutionize a country
containing nearly half a million inhabitants had been put down by the
people instantly and decidedly without the loss of a man.
Nevertheless, a number of American citizens in Buffalo and other towns
on the frontier of the State of New York enlisted as soldiers, with
the avowed object of invading Canada and establishing a provisional
government. Public meetings were held to forward this design of invading
a country with which the United States were at peace. Volunteers were
called for, and arms, ammunition, and provisions were supplied by
contributions openly made. All this was in direct and flagrant violation
of the express laws of the United States, as well as of the law of
nations.
The civil authority of Buffalo offered some slight shew of resistance to
the movement, being urged to interpose by many of the most respectable
citizens. But no real impediment was offered, and on the 13th of
December some hundreds of the citizens of the State of New York, as
an armed body under the command of a Mr. Van Rensselaer, an American
citizen, openly invaded and took possession of Navy Island, a part of
Upper Canada, situate in the Niagara River.
Not believing that such an outrage would really be committed, no force
whatever was assembled at the time to counteract this hostile movement.
In a very short time this lawless band obtained from some of the
arsenals of the State of New York (clandestinely, as it is said) several
pieces of artillery and other arms, which in broad daylight were openly
transported to Navy Island without resistance from the American
authorities. The people of Buffalo and the adjacent country continued to
supply them with stores of various kinds, and additional men enlisted in
their ranks.
In a few days their force was variously stated from 500 to 1,500, of
whom a small proportion were rebels who had fled from Upper Canada. They
began to intrench themselves, and threatened that they would in a short
time make a landing on the Canadian side of the Niagara River.
To prevent this and to keep them in check a body of militia was hastily
collected and stationed on the frontier, under the command of Colonel
Cameron, assistant adjutant-general of militia, who was succeeded in
this command by Colonel McNab, the speaker of the house of assembly,
an officer whose humanity and discretion, as well as his activity,
have been proved by his conduct in putting down the insurrection in the
London district and have been acknowledged in warm terms of gratitude
by the misguided persons who had surrendered themselves into his hands.
He received orders to act on the defensive only, and to be careful not
to do any act which the American Government could justly complain of as
a breach of neutrality.
An official statement of the unfriendly proceedings at Buffalo was
without delay (on the 13th December) made by me to his excellency the
governor of the State of New York, to which no answer has been received.
And after this open invasion of our territory, and when it became
evident that nothing was effected at Buffalo for preventing the
violation of neutrality, a special messenger was sent to your excellency
at Washington to urge your interposition in the matter. Sufficient time
has not yet elapsed to admit of his return. Soon after his departure
this band of outlaws on Navy Island, acting in defiance of the laws and
Government of both countries, opened a fire from several pieces of
ordnance upon the Canadian shore, which in this part is thickly settled,
the distance from the island being about 600 yards and within sight of
the populous village of Chippewa. They put several balls (6-pound shot)
through a house in which a party of militiamen were quartered and which
is the dwelling house of Captain Usher, a respectable inhabitant. They
killed a horse on which a man at the time was riding, but happily did
no further mischief, though they fired also repeatedly with cannon and
musketry upon our boats.
They continued daily to render their position more formidable, receiving
constant supplies of men and warlike stores from the State of New York,
which were chiefly embarked at a landing place on the American main
shore, called Fort Schlosser, nearly opposite to Navy Island. This place
was once, I believe, a military position, before the conquest of Canada
from the French, but there is now neither fort nor village there, but
merely a single house occupied as a tavern, and a wharf in front of it,
to which boats and vessels are moored. The tavern had been during these
lawless proceedings a rendezvous for the band (who can not be called
by any name more appropriate than pirates), and was in fact openly and
notoriously resorted to as their headquarters on the mainland, and is
so to this time. On the 28th December positive information was given to
Colonel McNab by persons from Buffalo that a small steamboat called the
_Caroline_, of about 50 tons burthen, had been hired by the pirates, who
called themselves "patriots," and was to be employed in carrying down
cannon and other stores and in transporting men and anything else that
might be required between Fort Schlosser and Navy Island.
He resolved if she came down and engaged in this service to take or
destroy her. She did come down agreeably to the information he received.
She transported a piece of artillery and other stores to the island, and
made repeated passages during the day between the island and the main
shore.
In the night he sent a party of militia in boats, with orders to take
or destroy her. They proceeded to execute the order. They found the
_Caroline_ moored to the wharf opposite to the inn at Fort Schlosser.
In the inn there was a guard of armed men to protect her--part of the
pirate force, or acting in their support. On her deck there was an armed
party and a sentinel, who demanded the countersign.
Thus identified as she was with the force which in defiance of the law
of nations and every principle of natural justice had invaded Upper
Canada and made war upon its unoffending inhabitants, she was boarded,
and after a resistance in which some desperate wounds were inflicted
upon the assailants she was carried. If any peaceable citizens of the
United States perished in the conflict, it was and is unknown to the
captors, and it was and is equally unknown to them whether any such were
there. Before this vessel was thus taken not a gun had been fired by the
force under the orders of Colonel McNab, even upon this gang of pirates,
much less upon any peaceable citizen of the United States. It must
therefore have been a consciousness of the guilty service she was
engaged in that led those who were employing her to think an armed guard
necessary for her defense. Peaceable citizens of the United States were
not likely to be found in a vessel so employed at such a place and in
such a juncture, and if they were there their presence, especially
unknown as it was to the captors, could not prevent, in law or reason,
this necessary act of self-defense.
Fifteen days had elapsed since the invasion of Upper Canada by a
force enlisted, armed, and equipped openly in the State of New York.
The country where this outrage upon the law of nations was committed
is populous. Buffalo also contains 15,000 inhabitants. The public
authorities, it is true, gave no countenance to those flagrant acts, but
it did not prevent them or in the slightest degree obstruct them further
than by issuing proclamations, which were disregarded.
Perhaps they could not, but in either case the insult and injury to the
inhabitants of Canada were the same and their right to defend themselves
equally unquestionable.
No wanton injury was committed by the party who gallantly effected this
service. They loosed the vessel from the wharf, and finding they could
not tow her against the rapid current of the Niagara, they abandoned the
effort to secure her, set her on fire, and let her drift down the
stream.
The prisoners taken were a man who, it will be seen by the documents
accompanying this dispatch, avowed himself to be a subject of Her
Majesty, inhabiting Upper Canada, who had lately been traitorously in
arms in that Province, and, having fled to the United States, was then
on board for the purpose of going to the camp at Navy Island; and a boy,
who, being born in Lower Canada, was probably residing in the United
States, and who, being afraid to land from the boat in consequence of
the firing kept up by the guard on the shore, was placed in one of the
boats under Captain Drew and taken over to our side, from whence he was
sent home the next day by the Falls ferry with money given him to bear
his expenses.
I send with this letter, first, a copy of my first communication to His
Excellency Governor Marcy,[27] to which no reply has reached me; second,
the official reports, correspondence, and militia general order
respecting the destruction of the _Caroline_, with other documents;[27]
third, the correspondence between Commissary-General Arcularius, of the
State of New York, respecting the artillery belonging to the government
of the State of New York, which has been and is still used in making war
upon this Province;[27] fourth, other correspondence arising out of the
present state of things on the Niagara frontier;[27] fifth, the special
message of Governor Marcy.[27]
It will be seen from these documents that a high officer of the
government of the State of New York has been sent by his excellency
the governor for the express purpose of regaining possession of the
artillery of that State which is now employed in hostile aggressions
upon this portion of Her Majesty's dominions, and that, being aided and
favored, as he acknowledges, by the most friendly cooperation which the
commanding officer of Her Majesty's forces could give him, he has been
successfully defied by this army of American citizens, and has abandoned
the object of his mission in despair.
It can hardly fail also to be observed by your excellency that in
the course of this negotiation between Mr. Van Rensselaer and the
commissary-general of the State of New York this individual, Mr. Van
Rensselaer, has not hesitated to place himself within the immediate
jurisdiction of the government whose laws he had violated and in direct
personal communication with the officer of that government, and has,
nevertheless, been allowed to return unmolested to continue in command
of American citizens engaged in open hostilities against Great Britain.
The exact position, then, of affairs on our frontier may be thus described:
An army of American citizens, joined to a very few traitors from Upper
Canada, and under the command of a subject of the United States, has
been raised and equipped in the State of New York against the laws
of the United States and the treaties now subsisting, and are using
artillery plundered from the arsenals of the State of New York in
carrying on this piratical warfare against a friendly country.
The officers and Government of the United States and of the State of New
York have attempted to arrest these proceedings and to control their
citizens, but they have failed. Although this piratical assemblage are
thus defying the civil authorities of both countries, Upper Canada alone
is the object of their hostilities. The Government of the United States
has failed to enforce its authority by any means, civil or military, and
the single question (if it be a question) is whether Upper Canada was
bound to refrain from necessary acts of self-defense against a people
whom their own Government either could not or would not control.
In perusing the message of His Excellency Governor Marcy to the
legislature of the State of New York your excellency will probably feel
some degree of surprise that after three weeks' continued hostility
carried on by the citizens of New York against the people of Upper
Canada his excellency seems to have considered himself not called upon
to make this aggression the subject of remark for any other purpose
than to complain of a solitary act of self-defense on the part of Her
Majesty's Province of Upper Canada, to which such unprovoked hostilities
have unavoidably led.
I have the honor to be, sir, your excellency's most obedient, humble
servant.
F.B. HEAD.
[Footnote 27: Omitted.]
_Mr. Forsyth to Mr. Fox_.
DEPARTMENT OF STATE,
_Washington, February 13, 1838_.
HENRY S. FOX, Esq., etc.
SIR: I have the honor to acknowledge the receipt of your note of the
6th instant, communicating a copy of a letter from Sir Francis Head,
lieutenant-governor of the Province of Upper Canada, respecting the
capture and destruction of the steamboat _Caroline_ by a Canadian force
on the American side of the Niagara River within the jurisdiction of the
State of New York, together with the reports and depositions thereto
annexed.
The statement of the facts which these papers present is at variance
with the information communicated to this Government respecting that
transaction; but it is not intended to enter at present upon an
examination of the details of the case, as steps have been taken to
obtain the fullest evidence that can be had of the particulars of the
outrage, upon the receipt of which it will be made the subject of a
formal complaint to the British Government for redress. Even admitting
that the documents transmitted with your note contain a correct
statement of the occurrence, they furnish no justification of the
aggression committed upon the territory of the United States--an
aggression which was the more unexpected as Sir Francis Head, in his
speech at the opening of the parliament of Upper Canada, had expressed
his confidence in the disposition of this Government to restrain its
citizens from taking part in the conflict which was waging in that
Province, and added that, having communicated with the governor of
the State of New York and yourself, he was then waiting for replies.
It is not necessary to remind you that his expectations have been met by
the adoption of measures on the part of the United States as prompt and
vigorous as they have been successful in repressing every attempt of
the inhabitants of the frontier States to interfere unlawfully in that
contest. The most serious obstacle thrown in the way of those measures
was the burning of the _Caroline_, which, while it was of no service
to Her Britannic Majesty's cause in Canada, had the natural effect of
increasing the excitement on the border, which this Government was
endeavoring to allay.
I avail myself of this occasion to renew to you the assurance of my
distinguished consideration.
JOHN FORSYTH.
BUFFALO, _December 30, 1837_.
His Excellency MARTIN VAN BUREN,
_President of the United States_.
SIR: Inclosed are copies of affidavits[28] which I have prepared in
great haste, and which contain all that is material in relation to the
gross and extraordinary transaction to which they relate. Our whole
frontier is in commotion, and I fear it will be difficult to restrain
our citizens from avenging by a resort to arms this flagrant invasion
of our territory. Everything that can be done will be by the public
authorities to prevent so injudicious a movement. The respective
sheriffs of Erie and Niagara have taken the responsibility of calling
out the militia to guard the frontier and prevent any further
depredations.
I am, sir, with great consideration, your obedient servant,
H.W. ROGERS,
_District Attorney for Erie County, and Acting for the United States_.
[Footnote 28: Omitted.]
WASHINGTON, _April, 1838_.
_To the Senate_:
I transmit a communication from the Department of War, on the subject of
the treaty with the Stockbridge and Munsee Indians of September, 1836,
which is now before the Senate.
M. VAN BUREN.
WASHINGTON, _April 15, 1838_.
The PRESIDENT OF THE SENATE OF THE UNITED STATES.
SIR: I transmit to you a report from the Secretary of the Navy,
accompanied with the papers relating to surveys, examinations and
surveys of light-houses, sites for light-houses, and improvements in the
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