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.
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