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Sir,

No. 3.

Viscount Palmerston to Mr. Fox.

Foreign Office, June 30, 1840. I NOW transmit to you the Draft of a Convention which Her Majesty's Government wish to submit to the Government of the United States, for the purpose of appointing two Commissions, the one to explore and survey the line of boundary between the British Provinces of New Brunswick and Canada and the United States, and to determine and lay down that boundary in conformity with the Treaty of 1783; the other to act as Arbitrator on matters with respect to which the first Commission may be unable to come to a decision.

Her Majesty's Government trust that this Draft will be considered a fresh proof of their earnest desire to bring this long-pending business to a just and satisfactory conclusion.

The Government of the United States, in the year 1833, made to the British Government a proposal that a Commission of Exploration should be appointed by the two Governments to search for the Highlands of the Treaty of 1783. The British Government accepted that proposal in substance, but suggested certain modifications in its details. Some of these modifications were agreed to by the Government of the United States; and Her Majesty's Government prepared a Convention, which, in its preamble, recited the agreement that had been come to by the two Governments, and in its Articles was intended to carry that agreement into effect. But when the Draft of that Convention was received at Washington, the Government of the United States seemed to have changed its views; and without assigning any specific reasons for not abiding by the agreement which had previously been come to, with respect to a proposal originating with the Cabinet of Washington, it transmitted, in reply, a Draft of Convention, differing essentially from that in which Her Majesty's Government thought they had embodied the result of the preceding negotiations.

The chief reason assigned, or rather implied, by the Government of the United States for rejecting the British Draft was, that in the present state of things, it has become inexpedient for the two Governments to take any measure on these matters which shall not contain within itself the certainty that it will lead to a final settlement. Her Majesty's Government concur in that opinion, but they think that the Draft which they proposed last year will be found, upon attentive examination, to contain arrangements which must almost necessarily have led to a final settlement. There was not, indeed, in that Draft any provision for arbitration upon points on which the Members of the Commission, and the two Governments who were to appoint them, might be unable to agree; and it may certainly be said that an arrangement is in a case of this kind the best adapted to render a final settlement certain. But one principal reason why that Draft did not contain a provision for arbitration was, that no such provision had then been proposed by the Government of the United States, and that, on the contrary, the Government of the State of Maine had distinctly resolved that it would not consent to any further arbitration.

The American Counter-Draft does contain a provision for arbitration; and Her Majesty's Government being desirous of having this question finally settled, and believing that there is little prospect of its ever being so settled without arbitration, in some shape or other, is willing to agree to adopt that principle.

The Draft now sent to be proposed to the United States' Government contains therefore a provision for establishing a Commission of Arbitration.

The American Counter-Draft seemed to Her Majesty's Government to be open to many objections, both in its principles and in its details.

Her Majesty's Government are willing to adopt the principle of arbitration, and to assent to the particular mode proposed by the President for constituting the arbitrating authority; but Her Majesty's Government do not see any advantage in carrying beyond the limits of necessity the employment and application of the arbitrating power, and the American Draft appears so to carry it.

That Draft provides, that if the joint Commission to be appointed by the two Governments shall not be able to agree as to the whole Boundary, then the determination of the whole of the Boundary is to be referred to the Commission

of Arbitration, who are to decide the entire line from the monument at the head of the St. Croix to the point where the 45th degree of north latitude strikes the St. Lawrence.

It may happen that this arbitrating Commission may be obliged to decide and determine the whole of that line, but it seems needless to assume that this will be the case; and it appears to Her Majesty's Government better that the Commission of Survey should decide finally all points on which they may agree, and that it should only be their points of difference that the Arbitrating Commission should be called upon to determine.

The American Draft proposes that each Government should make out a statement to be laid before the Commission of Arbitration.

Her Majesty's Government are of opinion that it will be much better that the documents to be laid before that Commission should be the Reports of the Commission of Survey, together with any observations which each Government may think fit to make thereupon.

The American Draft proposes that the Commission of Arbitration should be empowered to appoint surveyors to make surveys, and that the two Governments should bind themselves to adopt as conclusive the reports of these irresponsible surveyors; but such a proposal appears to Her Majesty's Government to be wholly inadmissible, and instead thereof, the Draft now sent, proposes, that any topographical information wanted by the Commission of Arbitration should be obtained through the two Governments from the Commission of Survey.

The other minor modifications of the American proposal will speak for themselves, and you will have no difficulty in explaining the reasons on which they are founded.

I must, however, particularly notice two or three passages in the American Counter-Draft which have been left out in the accompanying Draft, and which are wholly inadmissible. The first is in that part of the American Preamble, in which, by what appears to be merely a topographical description, the Contracting Parties would affirm, that the line claimed by the United States does correspond with the words of the Treaty of 1783, and that the line claimed by Great Britain does not do so.

It is scarcely to be supposed that the President could have expected that this passage could have been agreed to by the British Government.

The second passage is in the 10th article of the American Draft, by which it is proposed that Mitchell's Map should be acknowledged as a document bearing upon the question to be decided. But Mitchell's Map is well known to be full of the grossest geographical inaccuracies, and to be remarkable for extraordinary errors in the latitude and longitude of places; and as that map is not mentioned, or in any degree referred to by the Treaty of 1783, and as that Treaty is the authority now to be expounded, Her Majesty's Government cannot possibly consent to give any value whatever to a map which is entitled to no weight, either from diplomatic or scientific considerations.

The third passage is in Article XIV. of the American Counter-Draft, which seems to imply, that agents of the two Governments should accompany the Commission of Survey, for the purpose, as it is said, of giving explanations on behalf of the respective parties.

To such a proposal, Her Majesty's Government cannot possibly consent; no such agents are necessary; no such explanations are wanted. The face of the country, and the words of the Treaty, are the things to be explained, and the Commissioners are there to explain them. The proposed agents would only maintain a perpetual squabble, and convert the encampments of the Commissioners into a scene of incessant contest. Her Majesty's Government must therefore insist that no agents, either from the British Government, or the British Colonial Authorities, or from the United States' Government, or from any of the States of the Union, be permitted to accompany the Commission of Survey.

For your further information and guidance, I send you a copy of the American Counter-Draft, with some marginal notes, which will put you in possession of the opinion of Her Majesty's Government, upon the points to which those notes refer.

In the Draft now sent, it is proposed that the Commission of Survey should meet at Quebec, and begin its exploration at the head of the Connecticut. This would be the most natural, and, in many respects, the most convenient arrange

ment; and the Commissioners would thus have the advantage of beginning their operations on Highlands which have already been acknowledged by both parties as being the Highlands of the Treaty, and as constituting a part of the Boundary between the two countries. Her Majesty's Government attach, therefore, much importance to this arrangement, and would very unwillingly consent to give it up. You will, it is to be hoped, have the less difficulty in maintaining it, because the Draft stipulates that the Commission shall be bound to survey any other part of the disputed Territory which two Commissioners on either side may wish to visit; and, therefore, the question merely is, which part of the territory the Commissioners shall begin at, and no part is to be excluded from their subsequent examination. &c.,

(Signed)

I am,

PALMERSTON.

Inclosure 1 in No. 3.

Draft of Convention between Great Britain and the United States, to ascertain and determine the North-Eastern Boundary.

PREAMBLE.

WHEREAS that portion of the Boundary between the British Dominions in North America and the United States of America, described in the Treaty of Peace signed at Paris on the 3rd September, 1783, as 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 north-westernmost head of Connecticut River; thence down along the middle of that river, to the 45th degree of north latitude; from thence by a line due west on said latitude until it strikes the River Iroquois or Cataraguay," has not yet been ascertained or determined; and whereas the point designated in the aforesaid Treaty, as the north-west angle of Nova Scotia, and which is to be formed by the intersection of the due north line from the head of the St. Croix, with the said Highlands, has therefore not been ascertained and defined; and whereas, by the stipulations of a Convention between Great Britain and the United States of America, signed at London on the 29th of September, 1827, the points of difference which had arisen out of the proceedings of the Board of Commissioners to whom the designation and demarcation of the said portion of boundary was intrusted under the Vth Article of the Treaty signed at Ghent, on the 24th December, 1814, were referred to the arbitration of the King of the Netherlands; and whereas, the decisions and opinions given by His Netherlands Majesty thereupon, as laid down in His said Majesty's Award, signed at the Hague, on the 10th January, 1831, failed to adjust the said points of difference; and whereas, Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the President of the United States, have deemed it expedient to appoint a new Commission of Exploration and Survey, for the purpose of laying down the said Boundary, in conformity with the stipulations of the aforesaid Treaty of 1783, and have moreover agreed upon certain arrangements to provide for an equitable and final decision of all points upon which the British and American members of such Commission may not be able to agree; and whereas, Her Britannic Majesty, and the President of the United States, have with this view resolved to conclude a Convention for regulating the proceedings of the said Commission, they have therefore named as their Plenipotentiaries for this purpose, that is to say:

Her Majesty the Queen of the United Kingdom of Great Brstain and Ireland, &c., &c., &c.

And the President of the United States of America, by and with the advice and consent of the Senate thereof, &c., &c., &c.

Who, after having communicated to each other their respective Full Powers, found to be in due form, have agreed upon and concluded the following Articles:

Within

months after the exchange of the ratifications of the present Convention, the two High Contracting Parties shall appoint a Commission to be composed in the following manner: three Commissioners shall be named by Her Britannic Majesty, and three by the President of the United States of America, by and with the advice and consent of the Senate thereof; and these six Commissioners so appointed, shall have power to appoint a secretary, and such other assistants as they shall judge necessary to enable them to execute efficiently the duties of their commission.

ARTICLE II†.

The said Commissioners shall meet in the first instance at the town of [Quebec], and shall have power to adjourn their meetings to such other place or places as they shall think fit; but before they enter upon the duties of their offices, they shall each, in the presence of all the others, make oath or affirmation, before the principal magistrate residing or acting at the said town of [Quebec], that they will impartially examine, and decide, according to the best of their skill and judgment, all points relating to their duties as Commissioners; and having done this, they shall then forthwith enter upon the discharge of their duties as hereinafter defined.

ARTICLE III.

The Commissioners so appointed shall proceed, in the first place, to the sources of the Connecticut River, and shall fix and determine that source which is described in the Treaty of 1783 as the north-westernmost head of the said river, ascertaining the latitude and longitude of the same. From thence the Commissioners shall proceed along the Highlands near the sources of the Chaudière and Penobscot, which divide those rivers that empty themselves into the River St. Lawrence, from those which fall into the Atlantic Ocean, marking out along those Highlands that portion of the Boundary between the United States and the British possessions which was agreed to by the joint Commission appointed by the British and American Governments under the Treaty of Ghent.

The Commissioners shall then continue to explore the said Highlands eastward, as far as the meridian of the head of the St. Croix; and from thence they shall descend, in a southerly direction, to the monument at the head of that. river.

The Commissioners having thus made a general survey of the country along which the line of Boundary is to run, shall proceed to lay that Boundary down accurately on the surface of the earth, and to mark it by monuments or other landmarks.

For this purpose they shall first proceed to lay down a due north line from the monument at the head of the St. Croix, and shall trace that line accurately in a due north direction until it meets the aforesaid Highlands, which they will have traced from the head of the Connecticut River.

From the point where the said due north line, astronomically drawn from the head of the St. Croix, shall be found to meet the said Highlands, (which point shall be deemed and taken to be the north-west angle of Nova Scotia, and the latitude and longitude whereof they shall ascertain,) the Commissioners shall proceed to lay down the Boundary along the said Highlands to the north-westernmost head of the Connecticut River, running the line, in conformity with the general usage which prevails as to boundary lines in North America, in as straight a direction from point to point as the nature and features of the country will allow.

From thence the Commissioners shall mark the Boundary in such manner as may be practicable, down the middle of the bed of the Connecticut River, to the 45th parallel of north latitude, which parallel they shall ascertain by the most

*As in Article I. of the British Draft, and in the American Counter-Draft.
+ As in Article II. of British Draft, and in the American Counter-D raft.

accurate observations they may be able to make, and from the point where the Connecticut River intersects the said parallel, the Commissioners shall proceed to lay down, and mark out, that line, westward, along the said parallel, until it strikes the River St. Lawrence, called in the Treaty of 1783, the Iroquois or Cataraguay.

The Commissioners shall make a Report of their proceedings, and shall prepare a Map of the Boundary Line, or of such parts thereof which they may have agreed upon; such Report and Map shall be prepared in duplicate, and shall be signed and sealed by the Commissioners; and one copy of the said Report and Map shall be transmitted to the British Government, and the other copy to the Government of the United States.

ARTICLE IV.

It shall be the duty of the Commissioners to explore and survey all such other parts of the Disputed Territory, besides those mentioned in the preceding Article, which any two of the Commissioners on either side may think it would be useful to examine, in order the better to ascertain the true Boundary intended by the Treaty of 1783; and it is understood between the Contracting Parties, that the Disputed Territory is comprised within a space, bounded on the east by a line, drawn due north from the source of the River St. Croix, as marked by the monument described in the preamble of the present Convention, and on the south, the west, and the north, by the two lines of boundary extending to the westward of the said due north line, and which were claimed, on behalf of the two High Contracting Parties, respectively, by their Commissioners, appointed under the Vth Article of the Treaty of Ghent.

ARTICLE V.

Whenever two of the three British Commissioners, and two of the three American Commissioners, shall agree upon any point or matter, the unanimous opinion and decision of those four shall be deemed and taken to be the opinion and decision of the Commission; and such opinion and decision shall be recorded, and shall be signed by the four concurring Commissioners, and shall be reported by them to the two Governments; and it is hereby agreed between the Contracting Parties, that every opinion and decision so recorded and reported by the Commission, shall be deemed final, and shall be held binding by both the High Contracting Parties.

ARTICLE VI.

Each of the High Contracting Parties shall be at liberty to lay before the Commission, for its information, copies of any official documents, or of any maps or surveys, which such Contracting Party may think calculated to throw light upon the matters which the Commission is appointed to investigate, or likely to assist the Commission in the performance of its duties. But no such maps or surveys shall be deemed by the Commissioners to be other than ex parte statements, furnished in order to assist the Commission in its own investigations, unless such maps and surveys shall be acknowledged and signed by two Commissioners on each side, as authentic evidence of the facts upon which they may

bear.

Each of the High Contracting Parties will give to the other, copies of any documents, maps, or surveys, which such Contracting Party may so lay before the Commission.

ARTICLE VII.

If it should happen that upon any points or matters which may come under the consideration of the Commission within the scope of its duties, four of the Commissioners as aforesaid, that is to say, two on each side, should be unable to

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