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jiiiisdiction the Government of New Brunswick might claim in virtue of
the Madawaska selllement. being confined to it^ could not he liglitfuUy
extended to Baker and his Ameiican neighbors. Even if he had been
guilt}' of any iriegular ily of ciHiduct, he was not amenable to (he Pro-
\iii( iai Governmerit, but to his o-tvn. His aiie^-t, therehMc, on (lie dis-

[ House Doc. No. 90. ] 297

puted ground, and transportation from it to Frederickton, at a considor-
a!)le distance from his family, and lii.s confincntont there in a h)alh9oine
jail, cannot hi; jiistided. It is a prococdinj; which seeiiis to have heen
adopted without regard to the rights of the United States in the territory
in question, and which assumes an exclusive jurisdiction on the part of
the Provincial Government. Nor is it compatible with that moderation
and loi bearance which, it has been understood between the two (Govern-
ments, should lie mutually })ractised, until the question of riii;ht between
them was finally settled. 1 am charged, therelbre, by the President, to
demand the inunediate liberation of John IJaker, and a lull indemnity for
the injuries which he has sullered in the arrest and detention of his

Nor can the President view with satisfaction the exercise of juris-
diction, on the part of the Provincial Government, over the settle-
ment on the Aroostook. That settlement was made only about six years
ago, partly by American citizens, and partly by British subjects. The
settlers supj)osed they were establishing themselves on American groiind,
and beyond the British jurisdiction. It has been only within these three
or four years past that the Provincial Government has undertaken to is-
sue civil process against tiie settlers ; and as late as last summer, pro-
cess for trespass and intrusion on the Crown lands was, for the first time,
issued. 'J'hese proceedings cannot be reconciled witli the resolution,
which you state to have been adopted by his Britannic Majesty's Lieu-
tenant Governor of New Brunswick, to maintain the disputed territory
in the same state in v»hich his excellency received it after the conclu-
sion of the treaty of Ghent. Nor can they be reconciled with that mu-
tual forbearance to perform any new act of sovereignty within the dis-
puted territory, having a tendency to strengthen the claim of the party
exercising it, which it has been expected would be observed by the two
Governments, during the progress of their endeavors amic?.hly to adjust
the question of boundary. The'undersigned must protest, in behalf of
his Government, against any exercise of acts of exclusive jurisdiction by
the British authority on the Madawaska, the Aroostook, or within any
other part of the disputed territory, before the final settlement of that
question : and he is directed to express the President's expectation that
Mr. Vaughan will make such representations as will prevent, in future,
any such juiisdiction from being exerted.

The undersigned requests Mr. Vaughan, on this occasion, to accept
assurafices of his high consideration.


Mr. Vaughan to Mr. Cloy.

Washington, February — , 1S2S.
The undersigned, envoy extraordinary and minister plenipotentiary
of his Britannic Majesty, has the honor to acknowledge the receipt of a
note from the Secretary of State of the United States, enclosing a copy
of the report made by the agent of the General Government, and a copy
of the report r.iade by the agent of the Government of the State of Maine,

298 [ House Doc. No. 90. ]

sent to inquire into the proceedinpis which took place, not lonsj; since, in
tlic disputed territory within the Pioviiu:t; of New Brunswick.

The uiidcrsiiincd has not any rcniai ks to make upon the rej)orts whicli
have been siihuiitted to him; but lie is t;la(l to learn, from Mr. ChiV'S
note, that it apjiears, from those reports, that some misrepresentation
took place in the accounts which had reached the Government of tiie
L'nited States, respecting the recent disturbances which took place
amongst the settlers in the disputed territory.

The Secretary of State expresses his dissent to the principle laid down
by the undersigned, in his note of the 21st of November last, that the
sovereignty and jurisdiction over the territory in dispute continue to be
vested in Great t5iitain, until the two CJovernnients shall have reconciled
their dilicrences respecting the line of boundary. Mr. Clay observes
that the United States contend that possession was transferred to them
by the treaty of 1783, which places the disputed territoiy within their
limits. Wjiatever may be the conviction of tl)e Government of the Uni-
ted States with regaid to the extent of the limits assiijned to it by that
treaty, those limits are still undefined and remain unadjusted ; and, nut-
withstanding the reports of the commissioners of boundary, and after le-
peated negotiations, remain to be settled by a reference to a friendly sov-
ereign, it is .the opinion of the undersigned that the sovereignty and
jurisdiction of the disputed territory rests with Great Britain, until that
portion of it designated in the tieaty of 17S3 shall have been finally set
apart from the British possessions, as belonging to the United States.

The British settlement upon the Madawaska river is considered by
Mr. Clay as an unauthorized intrusion on the property of the State of
Massachusetts. When the treaty of 1783 was concluded, New Bruns-
wick had not been erected into a separate Province, but it was included
in the Province of Nova Scotia. The St. Croix river was then consid-
ered to be the boundary, on the northeast, of Massachusetts, and on the
west, of Nova Scotia. Some dilBculty might have arisen about the exact
boundary between that Province and Massachusetts, on account of the
uncertainty of the limits of Acadie, (which now forms the Province of
New iirunswick,) as ceded by France to Great Britain in 1713. The
undersigned, however, cannot acquiesce in the pretensions of Massachu-
setts to the territory upon the Madawaska, which lies to the north of the
St. John's, and falls into tiiat river, at a distance from its source. It re-
mains to be seen, when the position of the northwest angle of Nova
Scotia shall have been determined, whether (he line of boundary between
Great Britain and the United States will intersect any portion of the
Madawaska territory. In the mean time, the undersigned begs leave to
express his conviction that neither the establishment of settlements upon
that river, nor the grants of land made to the settlers by the (jovernuicnt
of New Brunswick in 1700, can in any shape ad'ect the iinal settlement
of th(! buundary, or tend, as Mr. Clay seems to imagine, to strengthen
the claims of Great Biitain, or in any manner to invalidate the rights ac-
quired by the United States, under the treaty of 1783.

The Secretary of State obseives, in his last note, tliat the jurisdiction
(;xerciso(l by the Government of Now Brunswick in the Madawaska set-
tlement has not been exclusive, inasmuch as an iigent sent by the Gov-
ernor of the State of Maine took a census of the population in 1830, as

[ House Doc. No. 90. ] 299

belongins; to that State. The undersigned bej^s leave to remind Mr.
Clay that tliat attempt of the State of Maine to interpose its jurisdiction
was considciod l.y the lititish Government as an encroachment, and it
was the subject of a remonstrance to the (iovernment of the United

With regard to the arrest of John Baker, surely bis outrap;eous conduct
in stopping the mail from Canada, in hoisting the American Hag, and
forming a combination to transfer the territory in which he resided to
the United States, made him amenable to the laws. Although his resi-
dence, as it is observed by Mr. Clay, was not actually in the Madawaska
settlement, it was within the jurisdiction of New Brunswick, and he
knew it, as he had applied for and received, in 1832, the bounty upon
corn grown in newly cultivated ground, given by the Government of
that Province. A moderate bail was demanded of Baker for his appear-
ance to take his trial. He did not profit by this offer of the magistrates,
and thereby obtain his release from confinement, because he understood
that a writ had heen taken out against hira by some one of his creditors.
It does not appear that the proceedings have been carried on against him
with any unusual severity, and, after the investigation which has taken
place into all the circumstances attending his arrest, the undersigned did
not expect that the President of the United States would have demanded
his immediate liberation, and full indemnity for the injuries he has suf-
fered, by the arrest and detention of his person. A copy of the note
which the undersigned has had the honor to receive from the Secretary
of State shall be immediately transmitted to his Majesty's Government
and to the Lieutenant Governor of New Brunswick.

It appears that the President of the United States does not view with
satisfaction the exercise of jurisdiction by the Government of New Bruns-
wick in a settlement upon the Aroostook river, v/hich had its origin in
the unauthorized residence of stragglers from other districts. They re-
mained for some time unnoticed, but, within the last three or four years,
civil process has been issued against the settlers by the Provincial Gov-
ernment, which Mr. Clay is at a loss to reconcile with the resolution
which the undersigned has stated to have been adopted by the Lieutenant
Governor of New Brunswick, to maintain the disputed teriitory in the
state in which it was after the conclusion of the treaty of Ghent. The
undersigned is convinced that Mr. Clay will admit that no part of the
disputed territory can be left without the control of any civil authority.
All persons, of whatever description, who take up their residence in the
disputed territory, are within the British jurisdiction until the boundary
line is adjusted, and are amenable to the Government of New Bruns-
wick, and owe a temporary allegiance to his Majesty, so long as they
remain under his protection. It is not for the Lieutenant Governor of
New Brunswick to surrender up the exercise of an ancient jurisdiction ;
but in strict conformity with his resolution, above alluded to, his ex-
cellency has exercised it with great moderation, by refusing to make
grants of land, and by suspending the issuing of licenses for the cutting
of timber, and by strictly enjoining all mag'istrates under his control to
prevent trespasses and intrusions of every description. The Secretary
of State may rely upon the moderation with which the jurisdiction will
be exercised by his excellency over the disputed territory.


[ House Doc. No. 90. ]


The undersigned has observed that a misconception pervades all
papers which have fallen under his notice from the State of Ma
The disputed territory is invariably represented as a part of that Sts
unjustly v/ithheld from it; overlooking, always, the difficulties wh
Great iiritain and the United States have encountered in appropriat
and setting apart that portion which belongs to the United States un(
the treaty of 1783, and which have so uniortunately kept, as it wcie,»r'''*''^
abeyance, the title of the United States.

The undersigned cannot conclude this note without expressing W^
anxious wishes that the measure, now resorted to by both Governmer pGS'^^"
of arbitration, may put at rest, forever, the question of boundary, whilW^^'''
has lately so repeatedly occupied the attention of the Secretary of Stii'S^'r'"
and of the undersigned. IP""' - '

The undersigned requests Mv. Clay to accept the assurances of r""'"

highest consideration.


Mr. Clay io Mr. Vaughan.

; cor.

)l r.


Department of State,

Washington, March 17, 1828.

The undersigned, Secretary of State of the United States, in acknovF"'',

edging the receipt, on the 2dth ultimo, of the note of Mr. Vaughan T"^'

the ^ day of that month, in answer to that which the undersign<|f '"

had the honor to address to him, transmitting the reports made by tl
agents of the United States and the State of Maine, would have restri(F°
ed himself to a simple expression of his satisfaction with the engagemef,'*'
of Mr, Vaughan to lay the demand of the Government of the VnittP^'
States for the immediate liberation of John Baker, and a full indemniif P^
for the injury he had suffered by his arrest and detention, before the Go^*™'
ernments of Great Britain and the Province of New Brunswick, but fc
certain opinions and principles advanced by Mr. Vaughan, to which thP
undersigned cannot assent. And he feels it to be necessary, to guar'p
against any misinterpretation from his silence, expressly to state his dis
sent from them. In doing this, he will avoid, as much as possible, an
discussion of the respective claims of the two countries to the disputec
tenitory. If it were necessary to enter into that argument, it would no
be difficult to maintain as clear a right, on the part of the United States
to that territory, as they have to any other portion of the territory whic'};|'^^
was acknowledged by Great Britain to belong to them by the treaty ol'P^'
178.3. But as, by the arrangements between the two Governments, the
question of right has received a different disposition, it is unnecessary to.
give it a particular consideration here. The correspondence which thoj'^'
undersigned has had the honor of holding with Mr. Vaughan has relatec'
to the intermediate possession, and to acts of jurisdiction within the dis
puted territory, until the right is finally settled. It would furnish a jus.
occasion for serious regret, if, whilst the settlement of that question i.-i in
amicable progress, any misunderstanding should arise between the two
Governments, in consequence of what must be regarded by the Govern- P
ment of the United States as the unwarranted exercise of a right of juris- r

,1s so

I Till

[ House Doc. No. 90. ] 301

ion by the Government of the Province of New Brunswick within
(lisputed teriitory.

fhe undersi2;ned cannot concur in the opinion that the limits of the
iity of 1783 being undefined and unadjusted, the sovereignty and juris-
ion of the disputed territory rests with Great Britain until that por-
of it designated in the treaty of 1783 shall have been tinally set
rt from the British possessions as belonging to the United States. Mr.
jghan's argument assumes that some other act of setting apart the ter-
nes of the United States from those of Great Britain, than the treaty

ijjeace of 1783, was necessary ; and that, until that other act should be
formed, the United States could not be considered in possession.
is argument would prove that the United States are not now lawfully
possession of any portion of the territory which they acquired by the
;• of their independence; the treaty of 1783 being the only act of sep-
tion in virtue of which they are in possession of their territory. If,
he conclusion of the treaty of 1783, Gieat Britain had had the actual,
i not merely constructive, possession, and that actual possession had
along remained with her, Mr. Vaughan might have contended that
Government of Great Britain had a right to exercise a jurisdiction,
facto, over the disputed territory. But at that epoch, neither party
I the actual possession of the disputed territory, which was then an
nhabited waste. Which of the parties had the right of the possession,
)ended upon the limits of the treaty of 1783. lt\ as the United States
itend, those limits embrace it, they had the right both of sovereignty
1 to the possession, and Great Britain could not lawfully exercise
ler. It is true that Great Britain assei ts that those limits do not com-
hend the disputed territory. On that point the parties are at issue,
1 cannot agree. They have, however, amicably agreed to refer the
:ision of it to a common friend. Whilst the experiment is making for
5 peaceful settlement of the question, ought either of the parties to
ume the exercise of soveieignty or jurisdiction within the contested
ritory ? If he does, can he expect the other party to acquiesce in it,
to look on with indifference ? It was a mutual conviction of the irri-
ng consequence which would ensue from the exercise of a separate
isdiction by either of the parties, that led to the understanding, which

,; ; so long prevailed between them, to abstain from all acts of exclusive

:ii isdiction which might have a tendency to produce inquietude. In con-

j mity with that understanding, licenses to cut timber from the disputed
ritory, granted by the provincial authority, had been revoked, and the
ictice of cutting and removing the timber has been understood by the

J vernnient of the United States to have been discontinued,
t follows, from the view now presented, that the undeisigned cannot

»|)scribe to the opinion that the jurisdiction of the British Government,
ough its provincial authority, over the disputed territory, has contin-
i with Great Britain, notwithstanding the treaty of 1783. To main-
n that opinion, Mr. Vaughan must make out, either, first, that the
ms of the treaty do exclude altogether the disputed territory ; or that,
they include it, actual possession of the disputed territory was with

(jeat Britain in 1783. Neither proposition can be established.
(Mr. Vaughan seems to think that some civil government is absolutely

itcessary within the disputed territory. U its utility be conceded in




302 [ House Doc. No. 90. ]

reference to the inhabitants, it wouhl not be a necessary consequence
that the tioverninent of IS'ew Briu.sw ick, ;uid not the State of Maine,
ouglit to exert the requisite civil authority.

The alleged irregularity of the conduct of John Baker is relied upon bv
Mr. Vaughan as tbrining a justification for his arrest, and the subsequent
proceet4ings against hi;n in the courts of New Brunswick. 'I'he President
is far from being disposed tt) sanction any acts of Mr. JJakcr, by which,
on his private authority, he would undertake the settlement of a national
disj)ute. He derived no power for any such acts, either I'rom the Govern-
ment of the United States, or, as is believed, from the Government of
Maine. National disputes ought always to be adjusted by national, and
not individual authority. The acts of Baker complained of were, how-
ever, performed by him under a belief that he was within the rightful
limits of the State of Maine, and with no viev/ of violating the ter:itory
or oli'ending against the laws ot Great Britain. This case, therefore, is
very diilerent from what it would have been, if the irregularities attrib-
uted to him had been committed on the uncontested territory of Great

The undersigned finds himself as unable to agree that the misconduct of
Mr. Baker, whatever it may have been, warranted the Government of
New Brunswick ifi taking cognizance of his case, for the purpose of try-
ing and punishing him by British laws, as he was unprepared to admit
that the want of civil government, on the part of the iidiabitants of the dis-
puted territory, created a right in the Government of New Brunswick to
supply, in that respect, their necessities. In assuming that Baker render-
ed himself amenable to the laws of New Brunswick, Mr. Vaughan de-
cides the very question in controversy. He decides that the part of
Maine in contest appertains to the Province of New Brunswick, and that
the laws of New Brunswick can lun into the State of Maine, as the
limits of that State are understood to exist by the Government of tiie
United States. The Provincial Government of New Brunswick, in the
arrest and trial of Baker for acts of his, done on the disputed territory,
commits the very eiror which is ascribed to Baker, that of undertaking,
in ellect, to determine a national question, the decision of wliich should
be lelt to the Goveinmerits of Great Britain and the United States, which
are, in fact, endeavoring peaceably to settle it.

It would have been more conlbrmable with good neighborhood a; d
the respective claims of the two Governments, as w^ell as the mutual for-
bearance which they stand pledged to each other to practise, if a friendly
representation had been made to the Government of the United States of
any miscoiuluct charged against John I'laker, or any other citizen of the
Unitf.'d States itdial)iting the disputed territory, accompanied by ai-equ< -
for the redress called lor by the nature of tiie case. Such was thu
course pursued by Sir Charles Bagot, as far back as the year 1518. In
December of that year, he had an interview with the then Secretary of
State, in which he pieferred a complaint of irregular settlements attempt-
ed by citizens of the United Slates on the li-.nds in controversy. The
Secretary of State, on rerciving the compbiint, staled that he supposed '
the settlers were of that class of intruders denominated S(iuattets, mean-
ing persons who commence settlements upon the public lands without
title ; that as, by Mr. Bagot's representation, it appeared that they were

[ House Doc. No. 90. J .'303

cnterinp; on tlic disputed borders in fauiilics, pcacca])lo means would,
doubtless, be sulRcienf, to remove them ; and that, il" he, Mr. IJuj^ot,
would procure and communicate their names to the Secretary of State,
he would invite the Governor of Massachusetts to take the necessary
measures for restraining them. But their names were never, in fact, dis-
closed to this Government. Among the papery recently comninnicated
by the Governn)cnt of New Brunswick to Mr. Barrell, the agent of the
United States, the President has observed, with regret and surprise, a
letter from Mr. Bagot to the Lieutenant Goveinor of the Province, bear-
ing date the 8th of December, 181S, in which, after referring to the
above interview, Mr. Bagot gives it as his opinion that the Government
of New Brunswick might remove the settlers by force. This conclusion
is not only unwarranted by anything which passed at that interview, but,
I am directed to say, is contrary to that which the Government of the
United States had reason to expect would have resulted from it. So far
from conceding a right in the Government of New Brunsvvick forcibly
to remove those persons, their names were requested, to enable their
own Government to operate upon them, if necessary. In the letter from
Mr. Bagot to the Lieutenant Governor of New Brunswick, he clid, agree-
ably to the request of the Secretary of State, ask for their names, whilst
the advice that the Goveinmenl of New Brunswick shotdd forcibly re-
move them as intruders obviously superseded the only practical purpose
foi which their names had been desired, that the Governor of Massachu-
setts might be called upon, by peaceable means, and by his lawful
authority, to restrain them.

'I'he enumeration of the settlers on the Madawaska, as a part of the
population of the United States, which took place in 1S20, was not un-
der tiic authority of the State of Maine ; it was made in virtue of the
laws of the United States, and by otRcers duly commissioned by them.
Mr. Vaughan says there was a remonstrance against it at the time ; no
trace of any such remonstrance is discernible in the lecords of this De-

in the note which Mr. Vaughan addressed to the undersigned on the
2Lst day of November last, it was stated that the Lieutenant Governor
of New Bruiiswick had resolved to maintain the disputed territory in the
state in wliicb it was at the conclusion of the treaty of Ghent; that
treaty was signed on the 24tli December, 1814, and the exchange of its
ratifications was made on the 17th day of February of the ensuing year.
More than seven years thereafter, and four years after the interview be-
tween Sir Charles Bagot ami the Secretary of State, certain persons,
W'ithout authority, settled themselves on the waste and uninliabited lands
of the Aroojtook, within the disputed territory, supposing that they were
occupying American ground. Within only three or Jbur years past, the
Provincial Government has undertaken to issue civil process against the
settlers, ibr the purpose of enlbrcing the collection of debts, and the per-
formance of other social duties. The undersigned, in his note of the
20th ultiiiif, has stated that he could not reconcile this exercise of juris-
diction Viit'i the above resolution of the Lieutenant Goveiijor of New
Brunswi'-., and he is still unable to perceive their compatibility. If the
Lieuten;uif. Governor had applied to the Government of the United
States to remove the settlers, he would have manifested a disposition to

Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 39 of 56)