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304 [ House Doc. iXo. 90. ]

preserve the disputed territory in the state in which it was at tho con-
clusion of liie treaty of Ghciit. But, by ticuiing the settlers as Biitish
sulijfcts, and enforcing; on thuni Brilish laws, tiicre is, at the same time,
a manifest depaiture from tlie resolution formed by the Lieutenant Gov-
ernor, and a disie^^ard of the lawful ris^his of the United States. l( a
succession of illegal settlements can be made within the territory, and if
these unauthorized intrusions lay a just j;round for the exercise of Biitish
authority, and the enforcement of Britisli laws, it is obvious that, so far
Irom maintaining the countiy in the uninhabited state in which it was at
the date of the treaty of Ghent, the whole of it may become j)eopled,
and be broui;ht, with its irihabitants, undt;r British subjection.

Mr. Vau^han supposes that the acts of British authority, to which the
undersigned in the course of this coriespondence has had occasion to
object, can in no shape aflect the final settlement of the boundary, nor
tend to strengthen the claims of Great Britain, nor in any manner to in-
validate the rights of the United States. If there were an absolute cer-
tainty of a speedy settlement of the boundary within a definite time, Mr.
^'aughan might be correct in supposing that the rights of the lespective
pai ties w.iuld not be ultimately affected by those acts of jurisdiction.
But it is now near half a century since the conclusion of the treaty of
peace out of which the controveisy grows, and it is more than thirteen
years since the final ratification of that of Ghent, providing a mode of
amicably settling the dis;)Utc. Il remains unadjusted. Mr. V'aughan
himself has repeatedly expiessed regret, in which the undersigned has
fully participated, on account of the delay. Judging from past expe-
rience, as well as the uncertainty of human affairs in general, we are
far from being sure when a decision will take place, if, in the mean
time. Great Britain were to be allowed quietly to possess herself of the
disputed territory, and to extend her sway over it, she would have no
motive for co-operating in quickening the termination of the settlement
cf the question. Without inq^uting to her a disposition to prociastina-
tion, she would, in such a state of things, be in the substantial enjoyment
of all the advantages of a decision of the controversy in her favor. The
President of the United States cannot consent to this unequal condition
of the parties ; and the undersigned, in conclusion, is charged again to
jjrutest against the exercise of all and every act of exclusive jurii.diction
on the part of the (iovernn»eut of the I'rovince of New Brunswick, and
to announce to Mr. Vaughan that that Government will be responsible
lor all the consequences, whatever they may be, to which any of those
acts of juiisdittion may lead.

'J'he undersigned ic(juests Mr. Vaughan to accept the renewed assu-
rances ol bis high consideration.


Right Ilcni. Cmaki.ks R. V'augha.v, &c.

Mr. Vavi^haii to ilfr. Clay.

Washington, March 25, IS28.
The undersigned, his Britannic Majesty's envoy extraordinary and
minister plenipotentiary, has tho honoi- to acknowledge the receipt of

[ House Doc. No. 90. ] 305

the note of the Secrct.iry of State of the United States, dated the 17th
instant, in which, in order to guard against any misrepresentation of his
silence, he lias taken occasion to express his decided dissent from the
principles and opinions advanced by the undersigned, in justification of
certain acts of jurisdiction which have been exerci.sed in the disputed
territory by the provincial authorities of New Brunswick.

As it is the intention of the undersigned to submit to the consideration
of his Majesty's Government the correspondence which has taken place
between the Secretary of State of the United States and himself, he is
not disj)osed to prolong the discussion respecting the exercise of juris-
diction in the disputed territory.

When he received the complaints against the conduct of the Lieuten-
ant Governor of New Brunswick, he thought it his duty to suggest the
grounds upon wliich that conduct might be justified, and the irritation
might be mitigated which was likely to arise out of it.

The undersigned is at a loss to understand the distinction made by
Mi. Clay between the actual and constructive possession of the disputed
territory previously to the conclusion of the treaty of 1783. Though a
part of that territory was uninhabited, and in a state of waste, so far
from neither party having the actual possession, the sovereignty and pos-
session of the entire Province of Nova Scotia was vested, indisputably,
in his Britannic Majesty ; and it is the received opinion that the pleni-
potentiaries engaged in concluding the treaty of 1783 did intend and did
agree to leave untouched the rights of his Majesty over the Province of
Nova Scotia.

The boundary, from the mouth of the river St. Croix to its sources, is
clearly defined ; the right continuation of the line entirely depends upon
the position of the northwest angle of Nova Scotia, which the British
commissioners of boundary, under the fifth article of the treaty of Ghent-,
have placed at Mars Hill, and the American commissioners have placed
at a great distance to the northward, and not far from the right bank of
the river St. Lawrence.

The undersigned agrees with Mr. Clay in wishing to avoid any discus-
sion of the claims of the respective Governments; but he has ventured
to point out the very great difference between the commissioners of
boundary, as he conceives that, until that difference shall be reconciled,
jurisdiction must continue to be exercised within the disputed limits by
the original possessors. A joint jurisdiction appears to the undersigned
inadmissible, as it must prove inijjracticable.

The undersigned cannot acquiesce in the opinion given by Mr. Clay,
that the issuing of legal process, within the last few years, in a settle-
ment upon the river Aroostook, formed originally in an unauthorized
manner by stragglers from other districts, is to be considered as an in-
fringement of the engrigement of the Lieutenant Governor of New
Brunswick to preserve the disputed territory in the state in which it
was at the conclusion of the treaty of Ghent. These settlements were
established previously to the Government of New Brunswick being con-
fided to Sir Howard Douglas ; and the undersigned conceives that it was
not optional in his excellency to exercise, or not, jurisdiction within the
limits of his Province.

Proceedings in a tract of land upon the river Madawaska, in which a

SOG [ House Doc. No. 90. ]

settlement was established soon after the treaty of 1783, by French Aca-
dians, have riinii?hed, re})eatodly, cause of remonstrance to both Govern-
ments. From tlie date of 17bti, the laws by which those settlers have
been governed, and the magistrates by whom those laws have been exe-
cuted, have been derived from New Brunswick. Whether any and
what part of that settlement belongs to the United States depends upon
the provisions of the treaty of 1783. Until the two Governments can
agree upon the true intent of that treaty, possession and actual jurisdic-
tion remains with Great Britain.

it is true that, in 1820, there was an attempt lo invalidate that juris-
diction, when the marshal of the Stale of Maine sent an agent to enu-
merate the population of that settlement, under a law enacted by the
General Government of the United States. The undersigned learns,
with regret, that there is no record in the Department of State of a re-
monstrance against that proceeding by the British Government, as he
had asserted. Such was the conviction upon his mind, justified by the
fre(iuent remonstrances which he has been called upon to make, since
the summer of 1825, against proceedings of agents from tiie State of
Maine, authorized to sell lands, and to lay out roads and townships in
the same district.

With regard to the arrest of Baker, the Secretary of State, in his last
note, seems to think that, as he comnjitted the outrage for which he was
taken up, under a conviction that he v. as upon territory belonging to the
United States, a representation should have been made of his offence to
the Government of the latter.

The undersigned has only to refer the Secretary of State to his note
dated the 27th February, where it is shown that Baker was perfectly
aware of his residing within the jurisdiction of New^ Brunswick, as he
had received the provii;cial bounty for corn raised upon land newlv
brought into cultivation.

The undersigtied regrets that he should have found himself under the
necessity of making the foregoing observations ; and he cannot conclude
without expressing his earnest wish that the reference to arbitration may
relieve the Secretary of State and the undersigned from any further dis-
cusjsion relative to the boundary on the northeastern frontier of the United

The undersigned avails himself of this occasion to renew to Mr. Clay
the assurance of his distinguished consideration.


Tl;e Hon. H. Clay, &c.

Mr. Vaughan to Mr. Clay.

Washington, Jinie 4, 1828.
The Secretary of State of the United States, in a note dated the 20th
Febiuaiy, 1828, slated to the undersigned, his Britannic Majesty's en-
voy extraordinary and minister plenipotentiary, that he was charged by
the Biesident to demand the immediate liberation of John Baker, ( arrest-
ed by the Biitish authorities of Niw Brunswick,) and a full indemnify
for the injuries which he had sirfTered by the detention of his person.

[ House Doc. No. 90, ] 307

The undersigned, in an answer to (hit note, dated the 27th Fehiumy,
had the honor to observe that, after the inves(ig.»tion, which hud then
already taken place, into ail the circumstances attending the arrest of
Baker, and as the proceedings instituted against hitn had not been car-
ried on with any unusual severity, he did not ex|)e(;t that the President
of the United States would have demanded his release, and an indemnity
for his injuries. The undersigned, however, assured Mr. Clay that a
copy of his note of the 20th February should be transmitted botli to his
Majesty's Government and to the Lieutenant Governor of New Bruns-

The undersigned has now the honor to lay before the Government of
the United States a copy of a letter which he has received from his
Majesty's Lieutenant Governor of New Brunswick, enclosing a report
of the proceedings on the trial of John Baker, at Frederickton, on the
8th jMay, which has ended in Baker being found guilty, and a sentence
being passed upon him of fine to the amount of twenty-five pounds ster-
ling, and of imprisonment for two months.

The Lieutenant Governor of New Brunswick expresses his regrets in
the enclosed letter that he cannot remit the punishment of Baker, and
states his motives for not interfering with the regular course of law, un-
less he should receive instructions to do so from his Majesty's Govern-
ment, in consequence of the demand made in the note of the Secretary
of State of the United States, of the 20th of February last.

The undersigned has (he honor to request that Mr. Clay will accept
the assurances of his highest consideration.


The Hon. Henry Clay, Ai.c

Frederickton, May 12, 1828.

Sir : I have the honor to acquaint your excellency that John Baker
appeared in court at the term to which the indictment upon which he
had been arraigned was traversed, and after a trial, conducted in all re-
spects in a mild, liberal, and satisfactory manner, was found guilty, and
has been sentenced to two months' imprisonment, and to pay a fine of
£25 to the King.

I have the honor to transmit, Irerewith, a report of the trial, which I
certify to your excellency to be full, authentic, and coirect ; and by
which you will perceive that all the subversive acts reported in my de-
spatch of the 11th September, 1827, to your excellency, have been fully
proved, and that it was established in evidence that an actual practical
sovereignty has been exercised by Great Britain on that part of the ter-
ritoiy in which those subversive acts have been committed for upwards
of thirty years.

I regret that I cannot, under existing circumstances, safely yield to
those merciful considerations which might have induced me to remit the
punishment to which Baker has been sentenced ; but in the face of the
demand that has been made for the release of, and indemnity to. Baker,
upon grounds the reverse of those shown in the report of the Amer-
ican agent, Mr. Barrell, and entirely disproved by the evidence which

308 [ House Doc. No. 90. ]

came out on the ti ial, 1 conbider, and am advised, that it is the safest
nrocetdiiig for tliis Govcrnmenl to let tlie law take its course, unless I
should lercive contrary instructions from his Majesty's Government, in
consequLiice of the demand which has been made for the release of



Report of the trial oj Joh.i Baker ^ at the bar of the Supreme Court,
on Thursday the Sth of May^ 1828, /or conspiracy.

In the Hilary term of the supreme couit, the grand jury for the coun-
ty of York found a true bill of indictment against John Baker, James Ba-
con, and Charles Studson, for conspiracy. The two defendants, James
Bacon and Charles Studson, were not taken; but the defendant, John
Baker, being in custody, was brought to the bar and arraigned, and
thereupon pleaded not guilty, at the same time protesting against the
proceedings, and that he was not amenable to the jurisdiction of this

He was afterwards, during the term, admitted to bail, and entered into
recognizance himselt in £100, and two sureties in JCoO each, for his ap-
pearance at the present term, to traverse the indictment, and, in the mean
time, to keep the peace and be of good behaviour.

On Wednesday, the 7th instant, the Attorney General states to the
court that, having understood the defendant, John Baker, was in attend-
ance, he should be ready, at the opening of the court on the next day, to
proceed with the trial. One of the bail for the defendant then said that
tht' defendant would appear whenever he was required. Thursday was
therefore appointed by the court for the trial.

ThursdaYj May 8, 1828.

The honorable Chief Justice Saundeis, Mr. Justice Bliss, and Mr.
Justice Chipraan, came into court and took their seats.

The defendant, John Baker, was called, and appeared, and declared he
was ready for hi»ti ial. Mr. Attorney General then moved for trial, and
the cleik of the Crown proceeded to call over the names of the jury.

Ml. Justice Chipman stated to the defendant that he might challenge
any ol the jury for cause, but he declined availing himself of this privi-

The following jurors were called, and sworn, in the order they ap-
peared :

Michael Fisher, William Miller, Edward Cambridge, John Bain, Jo-
gei)h Sutherland, Donald McLeod, Joseph Estahrooks, Jr,. John Collins,
Samuel Curry, Thomas W. Peters, ^Villiam S. Esty, and Anthony

The clerk ol the Crown tiicn read the indictment, which is as follows:

Voi'.K, to ivit :

The jurors for our lord the King, upon their oath, present, that John
Baker, late of the parish of Kent, in the county of York, laborer, James
Bacon, late of the same ]>lace, laborer, and C'harles Studson, lute of the

\ House Doc. No. 90. ] S09

same p1a<!e, laborer, being persons greatly disaffected to our said lord
the now King, and his Government, within (liis his Majesty's Province
of New Brunswick, and being factiously and seditiously disposed, on the
fourth day of July, in the eighth year of the reign of our said sovereign lord
George the Fourth, with force and arms, at the parish aforesaid, in the
county aforesaid, did, amongst themselves, conspiio, combine, confede-
rate, and agree together, falsely, maliciously, factiously, and seditiously,
to molest and disturb the peace and common tranquillity of this Province,
and to bring into hatred and contempt our said lord the King, and his
Government, and to create false opinions and suspicions in the subjects
of our said lord the King, of and concering the Government and admin-
istration of our said lord the King, and of the royal power and preroga-
tive of our said lord the King within this Province.

First overt act. — And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said John Baker, James Bacon, and Charles
Studson, afterwards, to wit, on the same day and year aforesaid, at the
parish aforesaid, in the county aforesaid, in pursuance of, and according
to, the said conspiracy, combination, confederacy, and agreement amongst
themselves, had as aforesaid, did erect, and cause to be raised and erect-
ed, a certain llag-staft', and did place thereon a certain flag, as the stand-
ard of the United States of America, and did then and there declare, in
the presence and hearing of divers liege subjects of our said lord the King,
that the said place on which the same flag-stafl" was so erected was a part
of the territory of the said United States, and that they, the said liege sub-
jects, must thereafter look upon themselves as subjects of the said United

Second overt act. — And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said John Baker, James Bacon, and Charles
Studson, afterwards, to wit, on the 15th day of July aforesaid, in the
year aforesaid, at the parish aforesaid, in the county aforesaid, in further
pursuance of, and according to, the said conspiracy, combination, con-
federacy, and agreement amongst themselves, had as aforesaid, applied
to divers liege subjects of our said lord the King, and then and there pre-
sented to the same subjects a paper writing, which they, the said John
Baker, James Bacon, and Charles Studson, then and there requested the
said subjects to sign, then and there declaring that, by the said paper,
they, the said subjects, would bind themselves to oppose the execution of
the laws of Great Britain, to wit, in the Madawaska settlement, so called.

Third overt act. — And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said John Baker, James Bacon, and Charles
Studson, afterwards, to wit, on the 18th day of July, in the year afore-
said, in further pursuance of, and according to, the said conspiracy, com-
bination, confederacy, and agreement amongst themselves, had as afore-
said, did oppose and obstruct the postman then and there having the cus-
tody and carriage of his Malesty's mail to the Province of Lower Can-
ada, in the prosecution of his journey with the said mail ; they, the said
John Baker, James Bacon, and Charles Studson, declaring to the said
postman that the British Government had no right to send its mails by
that route, meaning through that part of the said parish of Kent called
the Madawaska settlement; and that they, the said John Baker, James
Bacon, and Charles Studson, had received orders from the Government

310 [ IIou8e Doc No. 90. ]

of the said United States to stop the carriage of the said mail through the

FourHi overt act. — And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said John Baker, James Bacon, and Charles
Studson, altcrwards, to wit, on the lOth day of August, in the year afore-
said, at ihe parish aforesaid, in the county aforesaid, in further pursuance
of, and according to, the said conspiracy, combination, confederacy, and
agreement, amongst themselves had as aforesaid, did hoist the flag of the
said L'nited States of Ameiica on a certain flag-stall' there erected and
placed ; ihey, the said John Baker, James Bacon, and Charles Studson,
then and there dcthuing, in the presence and hearing of divers subjects
of our said lord the King, ihat they, the said John Baker, James Bacon,
and Charles Studson, had so hoisted the same flag, and that they had
mutually entered into a written agreement to keep the same flag there,
and that nothing but a foice superior to their own should take it down ;
and, fuithci-, that they consideicd and had a right to consider themselves
then and there on the territory of the said United States; and that they
had bound themselves to resist by force the execution of the laws of
Great Britain among them there ; in very grer.t contempt of our said
lord the King and his laws, to the evil example of all others in the like
case otTending, and against the peace of our said lord the King, his crown
and dignity.

The Attorney General, who conducted the prosecution, then opened
the case to the jury, and stated generally the nature of the oflence, and
the facts necessary to be proved in order to support the indictment. He
then briefly set forth the evidence which he intended to adduce to sub-
stantiate the charge; and particularly stated it would be shown thai the
jurisdiction of this Province had always extended over the part of this
country where the offence was committed; that the defendants were
acting under no authority whatever ; and this was an indictment found
by tiie grand jury in the ordinary exercise of their duties. He desired
the juiy to dismiss from their mind everything that they had heaid or
seen written on this case, and decide on the guilt or innocence of the
party by the evidence alone ; and, if they could not conscientiously say
he was guilty, to acquit hin). Several authorities were then read ; but
as the whole case was most fully and ably gone into by the learned judge
who charged (he jury, and the same view of the l,aw and facts taken by
him as by the Attorney General, it is not necessary to go into a full de-
tail of the opening speech.

Mr. Attorney General then proceeded to call the witnesses.

William Feirio, one of the witnesses recognised at the last term, was
called, but did not appear.

George Morehouse was the (irst witness examined ; his evidence was
as fellows :

I am a justice of the peace for the county of York, and reside in the
parish of Kent, on the river St. John, about thirty miles below the
(iiand Falls. The Madawaska settlers commence a lew miles above the
Falls, and extend up forty to lifly miles. I have been settled wheic I
now live six years; but my ac<|uaiiitan(e with the Madawaska settlement
commenced in the year Irt)!). At this time the inhabitants were princi-
pally Fiench ; there were a few Ameiican citizens. I cannot say whether

[ House Doc. No. 90. ] 311

defendant was there then ; his brother Nathan was. I do not recollect
the defendant's being there until September, 1832: he and the other
Americans had formed a lumbering establishment at the head of the
Madawaska settlement, on the east side of the river St. John, by the
Meriumpticook stream. That part of the country where the French and
Americans were has been invariably under the jurisdiction and laws of
this Province since I knew it. I have been in the. constant habit, as a
magistrate, of sending my writs and warrants there, and no interiuption
or objection was made to the service of them until last August; until
then, it was my belief that all the inhabitants there considered themselves
under the jurisdiction of, and subject to, the laws of this Province, both
American citizens and French settlers.

When 1 speak of last August, I mean that this was the first intimation
I had of any objection being made to the exercise of the jurisdiction of
this Province there. That intimation was made by a report or commu-
.nication from Mr. Rice, that John Baker, the defendant, had been guilty
of seditious practices. I forwarded the communication to the Secretary
of the Province ; a few days after, about the 3d of August, I received
written instructions from his Majesty's Attorney General to proceed to
IMadawaska and take depositions, and get a copy of the written paper
which it wag reported the defendants had handed about for signature. I
accordingly proceeded to Madawaska on tiie 7th of August, and arrived
at the place where Baker's house is situate, and went into the house of
James Bacon, and asked him to let me see the paper which had been
handed about for signature ; he said he had it not. 1 then requested
Bacon to go with me to Baker's, to look for the paper ; he declined going ;
I then went towards Baker's house, and met him on his mill dam. The
mill dam is made across the river Meriumpticook. I stated to him that
it had been reported to Government that he and other American citizens
residing there had been guilty of seditious practices ; that 1 was autho-

Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 40 of 56)