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year 1810, no claim had been advanced by the United States, although
the settlement had been established at the time for upwards of twenty
years, under a grant from the Government of New Brunswick, and had
been constantly^dcsignated the Makawaska settlement."

Admitting the fact, as to the antiquity of the settlement, to be as stated,
giving the utmost extent to both modes of expression, it commenced
under grants about the year 1790, long after the treaty of 1783. Unless
the grants were within the Province of Nova Scotia, they were intru-
sions. That they were not within the Province abundantly appears
from all the documents before quoted in relation to the boundaries. No
valid claim of national sovereignty can be based on such acts, in the forum
of honor, conscience, or law. And no jurisdiction can, with any sem-
blance of propriety, be claimed beyond the actual possession. It cannot,
without violating the acknowledged principles in such cases, be extended
by construction. If such were the facts, and the settlements had been
made as early as 1790; if the British considered that they had any claim
to the territory on that account, it is extraordinary that they should have
been entirely overlooked by the Government, its ministers, and commis-
sioners, and never have been discovered until 1817, or since that time ;
more especially, when the treaty of 1794, and the discussions under the
5th aiticle of it, wherein it was conceded that the line due north frona
the source of the St. Croix, wherever it should be established, crossed
the St. John to the line of the Government of Quebec ; and, by a ref-
erence to the map, it will at once be seen that, had the most westerly
point been adopted which the British agent contended for, that the Mad-
awaska settlement is west of the meridian, and, at all events, within the
United States. When, also, the subject of surveying the boundaries had
been discussed on several occasions between that time and the treaty of
Ghent, and when, also, during the whole discussion which led to the
treaty of Ghent, that territory is sought as a cession, and with great per-
severance, by a resort to every mode which circumstances or their own
ingenuity suggested.

But the facts, as stated, are not admitted ; the settlement at Madawaska
did not succeed, but had preceded many years, grants which Sir How-
ard states, and therefore cannot be said to be made under the grants.
The settlement was made principally by French neutrals, whose
ancestors had lived near the bay of Fundy previous to the Anierican
Revolution. They, to avoid the British laws, moved up the river St.
John to a place called St. Ann's, now Fredericton. After the close
of the war, when the British established a town and military post at that
place, and circumscribed them in their quarters, stimulated by their
repugnance to the British, and desirous of living under their own
regulations, they pursued their course up the river, and established



122 [ Senate Doe. No. l7l. J

themselves at Mailawaska, where they lived many years, probably entirely
unknown to the world. Some of their countrymen joined them from
Canada. IT the seftleis, or some of them, now have grants from the
Province of New Brunswick, the reason for making such grants docs not
now appear. The intention of the Ciovernment can I)e inferred only from
the lacts disclosed ; from which it most clearly follows, that they did
not, by the intrusion, consider themselves as extending their lights of
property or jurisdiction, not having stated the fact for that purpose until
long since the treaty of Ghent. If the fact had been relied on by them
as giving any claim, the ministers who negotiated the treaty of Ghent,
while they were endeavoring by every means in their power to obtain
the teriitory in which the >iadawaska settlement is situated, by cession,
would not have been guilty of the omission.

Sir Howard still further says: "With regard to the timber cut by-
British subjects on the river Bistook, (Aroostook,) the A'ery circum-
stance of its having been seized by Mr. Porter, of the State of Maine,
proves that the inhabitants of that State consider themselves as at full
liberty to appropriate all the timber in that district to their own use. In
truth, that territory is especially represented by the Senate of Maine, as
lying within the acknowledged boundaries of that State. Now, this is
notoriously not the fact ; the British Government contend that the
northern boundary lino of the United States, running from the source of
the river St. Croix to the highlands, is terminated at Mars Hill, which
lies at the southwest of the Bistook, (Aroostook ;) at least, therefore, the
British territory declared to be the undoubted property of the State of
Maine is but a point in abeyance. Both parties claim, and, it appears,
have exercised an equal right over it."

That the British pretended any claim to the territory to the westward
ol the meridian line from the source of the St. Croix, and southerly of
the line of the Province of Quebec or Lower Canada, was totally un-
known to the United States until long after the treaty of Ghent, and it
seems to have been equally unknown to the British. The observation,
" 'i'his was notoriously not the fact," can only apply to a period subsequent
to the treaty; when it had been deemed proper by individuals and the
subordinate agents of the British Government to acquire, by some means,
the territory which they could not demand as a right. The above obser-
vation does not apj)ear to be true, from anything which had transpired,
of a public character, between the American and British Governments.
Such |)re(ended and unfounded claims could not have been, and were
not, anticipated. But, after all the pretensions, the claim and exercise
of right he admits to be equal, which is extraordinary, when the whole is
taken into consideration, and contrasted with the recent origin of and bold
assumptions on which they are founded.

It has alieady been shown that Massachusetts has made several grants
befoie 1808, scjine of which were on the .Aroostook, near the meridian
line, from the momnnent at the source of the river St. Croix, and that
she and Maine had, in addition to their geneial jurisdiction, exercised all
necessary acts of particular jurisdiction. And the British subjects found
there committing depredations on the timber, by Mi-. Porter, were there
as mere trespasseis, not claitning any right or authority from any source.
It was not until long after this period that any persons were there und*»r



[ benute J)uc. ^'o. I7l. ] 123

licenses from the Province oi New Brunswick, which caused (he men-
tion of it in (he Governor's message in January, 1825, The Bridsh
claim, as (hey make it, is even void of |)huisil)ili(y ; (hey ought not to
have chaimed the territory upon the BIstook, ( Aroostook,) and upper part
i of the St. John and its tributary streams, as a part of the ancient Province
i of Nova Scotia; but they ought to liave continued the line from Mars
i Hill, eastward, to the bay of Chaleurs, and have insisted that that was
I the northern line ; thereby yielding a part of Nova Scotia, and have left
; (he upper part of the St. John and its tributaries, and the Kestigouche
i river, in the Province of Quebec or Lower Canada ; and if, by that
i means, they had violated one of their favorite principles of exposition, to
1 wit, that tlie Province which has the mouth ought also to have the
! sources of the river, still the whole would have been witliin the geneial
sovereignty of Great Britain, one Province only gaining more than the
other lost. Yet such a claim, though more plausible, by relieving them
from the solecism of destroying the noithwest angle, or rather converting
the northwest angle of Nova Scotia into a southwest angle, which can
only be arrived at by running first north for more than forty miles from
the monument, at the source of the river St. Croix, and then southwest-
erly for more than one hundred miles, would have been no better, nor
would it be based on a more solid or substantial authority.

The British minister then observes: "The Governor of New Bruns-
wick informs me he does not consider himself at liberty to altei-, in any
way, the existing state of things, as far as regards the district above
mentioned, but he assures me that he will take especial care to keep well
within the limits of the line of duty marked out for him ; and, consider-
ing the shape which this question is now assuming, he will feel it
imperative on him to apply imt^iedlately for still more precise instructions
for guidance of his conduct In a matter of so much delicacy."

More notice has been taken of the foregoing letter than its importance
otherwise demanded, on account of its being the first document of an
oflBcial character in the archives of this State, which goes to show the
British claim as it had been made by their agent under the 5th article of
the treaty of Ghent.

The Secretary of State, November 25, 1825, wrote the Governor of'
this State, enclosing a copy of a note from the British minister to him,
and a copy of a note from Sir Howard Douglas to the British minister.
On the 25th of December, 1825, the Governor of this State transmitted
the Secretary of State of the United States a letter, with a copy of the
resolve of this State, respecting the settlers on the St. John and the-
Madawaska rivers, under which ihe agent of the State acted ; a copy of
the resolve of the Legislature of Massachusetts, respecting the same ;
also, the report of the land agent of Maine, detailing particularly the
transactions of the two agents under said resolves. From which report
it appears that the land agents had pursued the authority given them by
the resolves, and had not done some of the acts complained of by the
British.

The subject of the northeastern boundary was again noticed by the
Governor in his message to both branches of the Legislature, the 7th of
January, 1826, which was answered by the I^egislature in a report on
the 17th of January, and a resolve on the 26th of January of the same



1-Jl I" Senate Doc. No. I7l. ]

year. " That the Governor, for the time being, be authorized and re-
quested to take such measures as he may tliiiik expedient and ell'ectual,
to procure I'oi the use of the State, coj)ies of all such maps, documents,
publications, papers, and surveys, relating to the northeastern boundary
of the United States, described in the treaty of 1783, and such other in-
formation on that suL^'ect as he may deem necessary and useful for this
Stale to be possessed of."

" Tiiat the Governor of this State, in conjunction with the Governor
of Massaciiusetts, (provided the said Commonv.ealth «hall concur in the
measure, ) be authorized to cause the eastern and northeastern lines of the
State of Maine to be explnred, and the monuments u})on these lines,
mentioned in the treaty of 1783, to be ascertained in such a manner as
may be deemed most expedient."

The surveys of the unappropriated lands of Maine and Massachusetts
were continued, and five ranges of townships were surveyed, and ex-
tending from the line drawn \Nest from the monument, and extending from
that line to Fish river, and near the i iver St. Jolin.

The Fish river road, extending from the east branch of the Penobscot
river, northwardly, to Fish river, was laid out also under the authority of
the States.

The resolve was communicated to the Senators of this State in the Con-
gress of the United States, and enclosed by the Governor on the day of its
passage. And there was procured, in consequence of it, a copy of the
general mapcompih,d by the United States^ surveyors, from surveys made
under the 5th article of the treaty of Ghent.

The subject was again presented to both branches of the Legislature, by
the Governor, in his n)essage,on the 4th of January, 1827 ; and the Gov-
ernor also, by special message, communicated a letter from the Secretary
of State of the United States, dated January 29, of the same year, accom-
panied by a letter of Charles R. Vaughan, Esq., the British minister, dated
Januai}- 7, 1827, wherein he complains of the acts of Maine and Massa-
chusetts, in surveying and laying out townships and roads, and concludes
by saying : " 1 think it advisable to make you acquainted, without delay,
with the communication which I have received from the Lieutenant Gov-
ernor of New Brunswick, whom I beg leave to assure you, cavttiously
abslnins orr his part from exercising any authority in the disputed territory,
which could invite encroachments as a measure of retaliation." All which
were considered, and became the subject of a report in the Legislature on
the 12ih day of February, 1827, and a resolve was passed thereon, on the
23d day ol the same month, respecting the northeastern boundary of the
State, to \\ it : .

" Resolved^ That the (Governor be, and he is hereby, requested to take
all such rneasur( s, both in accpiiring infor inntion and in procuring a
speedy adjustment of the dispute, according to the treaty of 1783, as he
may deem expe(lier)t and for the interest of the State."

To this period, nothing of any importance had been obtained under-
the resolves of the Slate, although they had been regularly communi-
cated ; and all the irrfor rnation which was in possession of the Govern-
ment of this State consisted in the few, and very few, copies of letters
from the P)ritish minister, which had been elicited by the resohes of the
Stale of Maine ; and beyortd tl'iat there was no official information of



[ Senate Doc. No. 171. ] 1.5

the proceedings of the commission under the 5lh aiticle of the treaty of
Ghent, nor the chiims set up by the Hrilish, except what was derived
from public reports, vaji;ue in their nature, and uncertain in their charac-
ter. It was not until long after the commissioners had terminated their
labors, that any official communication was made which tended to show
the British claim ; and even that, from the looseness of its phraseology,
seemed to convey no other distinct idea, than that the British, from
causes known to themselves, claimed all the country north and west of
Mars Hill, as a part of the ancient Province of Nova Scotia ; and even
that did not appear until near the middle of the year 1825. The delay
to give information to the State of Maine, when it had been so often re-
quested, particularly in the letter of the Governor, of July, 1820, to the
Executive of the United States, containing a request that some one might
be added from the State of Maine to assist in the examination of the
subject ; and considering that the sovereignty of the whole country to
which the British had, in such an extraordinary manner, and so contrary
to the discussions which preceded the treaty of Ghent, pretended a
claim, was in Maine, and that the Government of the United States had
no constitutional authority to cede any po. lion of an independent sover-
eignty, directly or by construction, is certainly very extraordinary. And
it cannot fail to appear extraordinary that the same policy on the part of
the Government of the United States should be continued, when, by
uniting Maine in the controversy, all reasonable ground of complaint on
her part would have been removed ; at least, if she had in her sovereign
capacity engaged in the controversy, she must have been concluded by
the result. If she had mismanaged her concerns, that could never have
been brought up as a reasonable cause of complaint against the United
States. Maine, as she was in a state of profound ignorance, had no op-
portunity to aid or assist the United States ; nor does she claim that she
has a right to interfere in the course its Government chooses to adopt;
but she has the right of reading the constitution of the United States, of
judging for herself, and if she is deprived of the exercise of her sover-
eignty and her property, she has a right to remonstrate and assert her
rights ; and, by force of the original compact, she is entitled to the aid
and assistance of the independent sovereignties constituting the United
States, to reinstate her in that of which she has been deprived by an
unjust and unconstitutional exercise of power.

The promptness, decision, jjerseverance, and ability, with which the
Governor has executed the request contained in the last resolve, merits
the encomiums and approbation of the State. If further comment were
necessary, the fact that all the information which had been so long but
unsuccessfully sought, was obtaitred, speaks a language more satisfactory
to him and the State than anything we could add. As to the positions
taken arid maintained by the Governor, they must be in accordance with
the views and common sense of the State, and we cannot present his
discussions in a clearer or more acceptable light than to request a fair,
candid, and impartial examination of them. With these remarks, and
without further comment, the correspondence between him and the
Government of the United States is annexed.

Thus we have detailed, at some length, the principal facts and cir-
cumstances touching the title and the extent of the title of the State to



126 [Senate Doc. No. 171. J

territory and jurisdiction ; from uhich it appears that our title is perfect
to all ilio tonitory bounded by the southern line of the Province of
Lower Canada, to wit : by the line drawn fioni the head of Connecticut
liver, along the lands whicii limit the sources of the rivers that fall into
the river St. Lawrence, to the head of the bay of Chaleurs, and west-
ward of the line drawn due north from the source of the river St.
Croix to that line, beinti; the line described and adopted by the Brit-
ish Covernment long bcfoie the Revolution, and being the lines
which are also described and adopted by the provisional and de-
finitive treaties of peace. That the British Government have always,
directly and indirectly, conceded our title, in all the negotiations and
discussions on the subject, prior to the discussions under the 5th article
of the treaty of Ghent, and made no claim of title founded on any in-
trusion of theirs, the ministers, who sought it as a cession, not having
urged or even stated the fact, except by way of allusion, and that Mas-
sachusetts and Maine have always exercised jurisdiction according to
tlie title of Maine, and have continued their progress of surveys, sales,
and settlements, and other acts, and that the United States have al-
ways exercised general jurisdiction, and did in 1820 exercise acts of ju-
risdiction, as far as there was any occasion for it. That there was no
reason, from any knowledge in possession of the United States, until
very recently, and still more recently in possession of this State, more
immediately interested, to suppose, that, if the British Government had
crossed the above-described lines, she would not, as soon as the lines
were surveyed, withdraw, and cease to commit like acts of intrusion;
and it has also appeared, from representations made by the British minis-
ter to the Secretary of State, " that the [lieutenant Governor of New
Brunswick had given assurances that he would cautiously abstain from
all acts of authority which could invite encroachments as a measure of
retaliation."

But, notwithstanding all these facts, circumstances, and assurances,
.lohn Baker, a citizen of the State of Maine and the United States, was
arrested in his own dwelling-house, situated on the land he purchased of
and holds by the deed fiom Massachusetts and Maine, on a warrant and
otiiei process s-rved by the sheriff of the county of York, accompanied
by armed men, and in the night lime, at least before Baker had risen
from his bed, and was carried to Fredeiicton, and thrown into prison,
where he is now confined. Processes have also been served, within
our ten itory, on the Aroostook, and the cattle and property of our citi-
zens have been taken away by the civil officers of New Biunswick.
Baker is charged, ainong other things, with an intrusion and trespass on
tlie premises h(^ holds under Massachusetts and Maine.

When the (Governor of this State had received notice that the sove-
reignty of the Slate, by the officer of the Government of New Brunswick,
had been violated, in the abduction and imprisonment of one of its citi-
zens, and otiier acts, he issued his i)roclamation, and commissioned an
agent of the State to procceil to the Province of New Brunswick, to in-
(|uiie into the cause of the airest, and the other violations of the State
sovereignly, and to demand ol tho (iovernment of New Brunswick the
restoration of Baker; all which will more (idly appear in the documents
annexed. The Governor has in this, with liis usual pronjptness, dis-
cretion, and ability, performed his duty to the State and its citizens.



[ Senate Doc. No. 1 71. J U7

The agent, in prosecution of the object of his commission, proceeded to
Fredericton, the capital of New Hrunswick, and notified the Govern-
ment of his arrival and odicial capacity. lie was not received in his
official capacity. From what cause that arose, whether from their own
policy, or their misconstruction of the power and authority of the Gov-
ernor of this State, is not certain. It seems to us there would have
been no ol)jection to the recognition of the agent of this State, had his
commission been only to demand a fugitive from justice, or that the
Governor of New Brunswick would consider that he was transcending
his power, were he to send an agent to this State to demand a fugitive
from his own Government. Notwithstanding he was not received in an
official character, we are happy to have it in our power to say that he
was politely received by the gentlemen of the place. The object of his
agency, therefore, so far as it related to the arrest and imprisonment of
Baker, totally failed, as it did also in some other respects.

His oflicial capacity embraced two objects :

1st. To demand a delivery of persons.

2d. To obtain public information.

If not recognised for any other purpose, he might have been pf .mitted
as a person authorized to inquire into the truth of facts, important to the
rights of the people of the State and peace of the country.

From all the facts, we cannot perceive on what ground they can jus-
tify the violation of the State and national sovereignty in the arrest of
Baker, on his own soil and freehold, which he holds in fee under the
States of Massachusetts and Maine, and the other acts of their officers on
the Aroostook. On the ground of title, they have no justification, and
they can only justify themselves on the ground of a possession de facto^
which cannot by the acknowledged principles of law be extended be-
yond actual occupation. In the case of Baker, the settlement on his lot
was commenced not within even a possession de facto, feeble and slender
as that would be ; and in relation to the Aroostook, there is not even a
possession of any kind, unless it has been acquired by the lawless depre-
dations of individuals, for which (hey have, from time to time, atoned by
settlements with the agents of the State of Maine. Even the few who
have settled on the Aroostook, settled there considering it to be within
this State, and intending, also, to settle out of the Province of New Bruns-
wick. The course pursued by the British must be acounted for on an-
other principle than " a cautious abstinence of the exercise of authority
which could invite encroachments as a measure of retaliation."

When the British are thus attempting to extend their intrusion, and
imprisoning and otherwise harassing by legal process citizens of Maine,
they have constitutional claims on her protection ; and although Massa-
chusetts and Maine, from the treaty of peace, have exercised the same
jurisdiction over all the wild lands which had not been particularly ap-
propriated for cultivation to this time, if such acts are repeated, it can-
not be expected that Maine will be a quiet spectator. It will be her
duty to enforce her laws within her own jurisdiction, and to protect her
own rights and the rights of her citizens.

The Government of the United States have a duty io perforin towards
the State, and its citizens, not less tow;uds those who arc for cibly taken
from the territory, and imprisoned, than towards those who are taken



128 [ J^'enate Doc. No. l7l. |

from the national marine. An agent has been sent to the Province of
Nt'W Brunswick, \\ho has returneil, and \vc have a confidence that the
whole business will be adjusted, and that the constitutional rights of the
State, and the liberties and rights of the citizens, will be protected and



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 16 of 56)