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Maine boundary--Mr. Greely, &c. .. online

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rized to make inquiry. 1 told him it was reported that he had drawn
up, and circulated among the settlers, a paper, the purport of which was
that they were American citizens, and had bound themselves to resist the
execution of the laws of Great Britain ; he neither admitted nor denied it,
but said that he had been charged with an attempt to stop the mail,
which was false. I requested 'him to show me the paper which had
been handed round for signature ; he said he believed it was not in his
possession, but did not deny the existence of such a paper; he said he
did not know whether it was in his possession or not ; he thought Stud-
son had it. 1 requested him to go to his house and search his papers ;
perhaps he might find it ; we proceeded together tow^ards his house ; be-
tween his residence and the mill there is a new house, where ten or
twelve Americans were assembled. I did not know them to be Ameri-
cans, but supposed them to be so ; they were not French settlers ; when
we got there. Baker took two or three aside, and consulted wiih them a
few minutes ; he then came back, and said to me, " Mr. Morehouse,
I have consulted with the committee, and we have determined that you
shall not see this paper; we have formerly shown you jjapers in simdar
cases, which has been very prejudicial to us." I observed, \\hcn I went
there, a flag-staff erected on the point of land where Baker lives; the
;point is formed by the junction of the Meriumpticook river with the St.



312 [ House Doc. No. 90. ]

John; there was then no flag on it, but after coming out of Bacon's, I
observeil a flag hoisted — a white flag, with an American eagle and semi-
circle of stars, red. In tlie conversation 1 had with Bacon, he deprecated
Baker's practices, and said he would not desist until he brought the
Americans there into trouble. 1 think tiie persons Baker took aside to
consult with were Bartlett and Savage. After I had received the an-
swer before mentioned, I pointed to the flag, and asked Baker what that
wa?. He said, " the American flag, Mr. Morehouse ; did you ever see
if before ? If not, you can see it now." I asked him who planted it there ;
he said, " he and the other Americans there." Bacon was present at
the time; I required him in his Majesty's name to pull it down. He
replied, " no I will not ; we have placed it there, and we are determined
we will support it, and nothing but a superior force to ourselves shall
take it down ; we are on American territory; Great Britain has no juris-
diction here; what we are doing we will be supported in; we have a
right to be protected, and will be protected in what we are doing, by our
Ciovornment."

He did not produce or exhibit any authority. I then turned to Bacon,
and said, " Bacon, you have heard Baker's declaration ; do you mean to
support him in it ?" ile said, " of course I do." I then left him and
came away. Baker, about the 1st February, 1825, applied to me as a
ma<i;istrate, for summonses against some of the Madawaska settlers to
cf)llect debts. I gave him six summonses against persons all living in
tlie Madawaska settlement ; the return made to me was that the debts
were paid when the writs were served.

Baker has a considerable improvement, and raises more or less^'grain
every year. In 1823, I was at the place where he resides. I understood,
from what passed, that Baker and Bacon both acknowledged they had
signed the paper; they spoke of having bound themselves by a written
agreement to lesist the laws of England.

The direct examination having closed, the defendant was informed he
mi^ht cross-question the witness; he declined doing it, saying, under the
circumstances which he stood there, he did not intend asking any
questions.

To questions then put by the court, the witness stated :
The Madawa-ka seitlenieiit proper terminates at the Madawaska riv-
er ; above the river there are a few miles interval, with a few scattering
houses ; the main settlement then commences about nine miles above the
Madawaska, and extends seven or eight miles. The Meriumpticook is
about eighteen miles above the Madawaska. This settlement has formerly-
gone by the name of Chateaugay ; latterly it has been called Sainte Emi-
lie by the French settlers in the settlement. I mean distinctly that the
upper as well as the lower settlement has been subject to the British laws.
It is at the head of the settlement the Americans reside. The whole set-
tlement has gone by the general name of Madawaska settlement through-
out the country ; the name Chateaugay caused some dilference amongst
themselves; the priest changed it to Sainte Emilie ; there has been no
distinction in the actual exercise of jurisdiction between the upper and
lower part of this setllerrK rit ; the lower bound of the parish of Kent is
fciglile(-n miles b<low my roidence.

Francis Kioc sworn. I roide in the Madawaska settlemerjt, at the



[ House Doc. No. .90. ] ^\3

head of the first part. I am adjutant of the fourth haltalion York county-
militia ; the Madawaska j-ettlers arc enrolled in this hnttalion. I have
been in court, and heard Mr. Morehouse's evidence. I made a report to
him, as he has stated. I did not know the facts myself; they were re-
ported to me. I accompanied Mr. Morehouse on his visit to the settle-
ment on the 7th August last, and was present at the conversations with
Baker and Bacon ; the facts all took place as he has stated ; I can say
nothing more. The Madawaska settlers attend and turn out at the nwli-
tia training pretty regularly, both above and below the confluence of the
Madawaska.

The French settlers not being able to speak English distinctly, the
witness, Francis Rice, had previously been sworn as interpreter, and
acted as such throughout the tiial.

Abraham (Ihambeilain sworn. I live in the upper part of the Mada-
waska settlement, above the Madawaska river; have resided there four
years this summer; was born at bay Chaleur; came from there to this
Province four years ago, and have always lived since in the Madawai;ka
settlement. Charles Studson presented me a paper, I think in July last.
I don't remember seeing Baker. Bacon and Emery, and some other
Americans, were present. I was passing by ; they were drinking rum;
they asked me to take some ; I agreed. When they handed the paper,
I asked whether any of the French had signed it ; they said, not yet.

The witness being then asked as to the contents of the paper, and the
propriety of such evidence being questioned by the court, the Attorney
General cited the case of Rex versus Hunt and others, (3 Barn, and Aid.
566,) where it was decided, on an indictment for conspiracy, that second-
ary evidence of the contents of a paper which was in the defendant's
possession was admissible, without producing the original, or giving no-
tice to produce it ; and that parol evidence of inscriptions and devices on
banners and flags is also admissible. The question was then put ; but
the witness could say nothing as to the contents, stating that it was read
to him, but, being in English, he did not understand it. They asked
him to sign it ; but he did not understand for what reason. He wanted
to know whether any of the French had signed it. This took place at
the point of land near the mill. There was a flag hoisted, with an eagle
and stars on it ; they did not say anything about having signed the paper
themselves.

Peter Marque sworn. I live in the Ste. Emilie settlement, (the upper
one. ) Bacon and Studson, some time last summer, tried to make me sign
a paper. Studson handed it to me ; I do not know for what reason ; they
read the paper, but I did not understand it, and asked whether the French
had signed it ; they said, not yet. I then said I would not sign it. I told
Mr. Morehouse they wanted me to sign a paper. This was at the place
where the pole stands. I never understood the purpose for which I was
called to sign the paper. I worked eleven days for Baker last year, at
the time of getting hay ; I now work for myself. They told me Cham-
berlain had signed the paper. I don't lemember anything more.

Peter Sileste sworn. I was employed last summer to carry the mail
from Madawaska (o Lake Timisconatee ; as I was taking it up the river,
•polling up in a canoe, I met John Baker, coming down the river on a raft;
he came off to me in a small skiff; neither of us stopped. Baker asked



314 [ House Doc. No. 90. ]

me, in Englisli, " Do you carry the mail ?" I said, "Yes." He said he
had oider.s iVoin America not to let the mail pass that way. I replied, I
had no orders to stop there. This was all that jwssed. This was, 1 think,
in July.

Johoph Sanfason sworn. 1 live in the Madawaska settlement, half a
mite below the Green river; the Green river is below the Madawaska.
1 was horn at Madawaska. I bought land from J. Souci ; he had a grant
from the Government of this Piovince. I bought it six years ago. I have
been a constable for two years for ihe parish of Kent. I was obstructed
in my duty of constalde by Baker, Bacon, Bartlelt, Savage, Shelly, and
Jones. I had an execution from Mr. Morehouse against J. Bacon. I
asked Bacon if he would come ? He said he would not leave the place.
Baker said, it is of no use for you to go there ; you shall not have the
man. Bacon talked about settling it. Baker said. Bacon, you must not
settle it now ; you must settle it another time ; I will not allow any
olficcr to go up there, lie asked me if I had any authority to go there.
1 showed him the warrant; he said, if it came from the States he would
n)ind it ; but it was only from Mr. Morehouse, and he would not mind it.
They prevented my taking Bacon, who refused to go. This took place
near Baker's mill.

Edward William Miller, Esq., swoin. I am high sheriff' of the county
of York, and have been so since 1814. I have been acquainted with the
Madawaska settlement seven years. I never could make any division in
the settlement between the upper and lower. When I first knew it, it
extended to seven miles from the Falls ; lately, it has come.]wiihin three
or four miles. I know the Meriumpticook river. I have been in the
habit of serving wiits throughout the whole of the settlement, the same
as in any other part of my bailiwick. When I first became acquainted
with the settlement, 1 considered the inhabitants under the jurisdiction
and Government of this Province, without any dispute whatever. The
distance is so gieat 1 have never summoned them as jurors, it would be
so inconvenient to attend ; the inhabitants serve in the militia. I never
met with any obstruction in the discharge of my duty.

Peter Eraser, Esq., sworn. 1 have been an inhabitant of this Prov-
ince since 1784 ; am acquainted with the Madawaska settlement. It is
about seven or eight years since 1 was first there ; hut I have been ac-
quainted with the settlers since 1787. I considered them always under
the Government of this Province. The first settler I knew was Captain
Duperree, a captain of the militia of this Province ; the date of his com-
mission was between 1787 and 1790. He resided in the settlement. The
settlers have voted at elections ; there was some difiiculty at first in their
doing so, on account of the oath which was required to he taken, as they
were Catholics; but when this was altered, they have voted without
dillicully. To my own knowledge, they voted in 1809, and ever since.
I consider the Madawaska settlement as extending from the Great Falls to
the Canada line. I have been w here Baker lives ; and always deemed the
part above (he Madawaska river as in the Madawaska settlement. There
is no distinction, in this respect, between what is above and below that
river. The Madawaska set tiers are enrolled in the militia of this Prov-
ince ; in Captain Dupence's time, there were two comjianies. In 1821
they were form^- Ctto a separate battalion, consisting of five companies ;



[ House Doc. No. 90. J 315

I am major of the battalion. Tliey turn out very regularly. I never
heard of their making any objections to training.

Henry Cloppcr bwoin. I am cltik of (ho peace and register of deeds
for this county. I was appointed cleik in 1S23, and legister in 1821.
I succeeded my father in both ollices. 1 have discharged the duties
since 1820, having acted for him before rereiving the appointment vny-
self. Parish officers were appointed by the sessions for the parish of
Kent, There was a separate list for the Madavvaska district, in that
parish. I have been as far up the river as ten miles above the Grand
Falls. There are a great many deeds registed in my office of land in
Madawaska, where the parties are the Madawaska settlers, some as long
since as twenty-five or thirty years back. As clerk of the peace, I re-
ceive the money given as bounty for grain raised on new ground in this
county. In May, 1825, the defendant (John Baker) applied to me for the
bounty for grain raised by him on new land. He received the bounty from
me. The paper now produced by me is the document under wliich he be-
came entitled to it. I observed to him that he was an alien, and I was
not aware whether he was strictly entitled to it. He said his certificate
had passed the session. The paper I now hold is the certificate, and the
only one ; it has been on file in my office since.

The paper was here put in, and read by the clerk of the Crown, and
is as follows :

" I, John Baker, of Kent, do swear that ninety bushels of wheat were
really and truly raised on the land occupied by me, and are actually of
the crop of the year 1823, [1822,] and that the wood was cut down,
burnt, or cleared off from the land on which the same was raised within
two years previous to the time that the said crop was taken off, and that
they were of the first and only crop of grain raised on land from which
the said wood was so cut down, burnt, or cleared off, as aforesaid.

"JOHN BAKER.

" Sworn before me, at Woodstock, the 2d of July, 1823, [1825.]

" JOHN BEDELL, Justice of the Peace.

" I verily believe the facts above stated to be just and true.

"JOHN BEDELL."

I paid him by a check on Mr. Needham ; the amount was £4 5^. 3d.
This is the order I gave Mr. Needh'am.

Cross-examined by defendant. Have you got the receipt I gave
for the money ? The witness here produced the schedule and signature
to it by Baker, and said, this is the only receipt he gave me, except the
one given to Mr. Needham.

Mark Needham sworn. I remember the circumstance of paying this
order ; the words " received payment" on it are in my writing. 1 have
no doubt I paid it, but have not now any particular recollection of the
defendant. I considered it paid, and charged Mr. Clopper with it.

George I. Dibhlee sworn. I am acquainted with the handwriting of
the defendant, John Baker; have seen him write ; the signature to the
receipt on the order is his hand\viiting ; I have no doubt of it.

Simon Abear, or Hibert, sworn. I live two miles below ALidawaska
river; have lived there four [forty] years next month ; I moved there
from the French village about ten miles above Frederickton. I have a
grant of my land from this Province ; it is the first grant in the Mada-



316 f House Doc. No. 90. J

waska, and was made about two or three years after I moved up. I live
under this Government, and have ahva3S lived under it ; all the Mada-
"wabka settlers live under the same Government. I vote at elections;
the first time was about eight years ago. Baker came last year to my
house ; he asked me what time I go to train my company ; I am a cap-
tain of militia ; he said there is not much occasion to train at Madawaska.
I ii^quired the reason ; he said nothing ; I told him I would go next
Saturday — he must be stronger than me to prevent me. I know where
Baker lives ; he came live or six years ago ; he has always lived at the
same place ; raised grain there ; 1 believe he cultivated nowhere else.
Baker said I had better not train, but did [notj ask me not to train.

George West sworn. 1 know the defendant. Baker ; have known him
since 1820 ; he was then settled at the bay Chaleur ; I saw him next at
the Madawaska ; this was when Judge Bliss was President, I believe
IS^-l. I seized 300 logs from him ; 1 was then a seizing officer ; he said
he wished to become a British sulijcct, as he had been here the neces-
sary time ; he inquired of me what steps it would be necessary for him
to take ; I told him as far as my information went ; this was at the place
"where he lives; it is called Baker's mill stream ; he spoke as if he con-
sidered himself a resident within this Province, and wished to have all
the lenity shown him on that account ; it was shown him; he was allowed
to redeem the loss at the rate of :3s. Gd. per thousand feet, counting three
logs to a thousand. The logs were seized as cut on Crown lands without
license. I have seen him since ; there was a warrant of survey sent to
me to execute of this land where Baker resides ; it was in Samuel
Nevers's name ; Baker himself attended the execution of the warrant,
and directed the course, of the lines ; the privilege was considered
Baker's, but taken in Nevers's name, as Baker was not a Bi itish subject :
I think this was about two yeais ago.

The evidence on the part of the prosecution having here closed, the
defendant was called upon for Iiis defence ; he addressed the court nearly
as follows :

"I am a citizen of the United States, and owe allegiance to that
country. 1 have lately received my deed from the States of Maine and
Massachusetts. I hold myself bound to their courts. I live in American
territoiy. and hold myself only liable to the courts of that place, being
the county of Penobscot, in the State of Maine. I enter no defence,
and call no evidence. 1 do decline the jurisdiction of this court."

The defendant alluded to a letter he had, in the course of the trial,
handed to the Chief Justice ; which was delivered to him, and he was
intoiincd he might, if he chose, road it as part of his defence, but de-
clined doing so.

The Attorney (General then addressed the couit, and said that, as he
had, in his opening, staled generally the nature of the case and evi-
dence, and the defendant had not niade any defence, he did not think it
necessary, after so much time had been taken up, and the evidence so
fully gone into, to address the jury, but would merely read two or three
additional autlioi itics, (which he did from Staikie's Evidence, Comyn's
Digest, Blackstone's Coniin<n(ari( s, and Archbolil's Criminal Pleading,)
and then leave the case in the hands of the com t.

Mr. Justice Chipman charged the jury, lie began by stating the in-



[ House Doc. ^'o. 90. ] 317

dictinent and pica, the general nature of the olTence, and the prools re-
quisite to support the charge. He said (hit the body of the oflence was
the conspiracy, the combining and confederating together with the intent
laid in the indictment. In the present case, the intent charged was to
bring into contempt the King's authority, to spread false opinions among
his subjects as to his power and prerogative over them, and in fact com-
pletely to unsettle their minds as to their allegiance to the Government
under which they lived. This mind and intention must be made mani-
fest by overt acts. It was usual, though held not to be absolutely neces-
sary, to set forth overt acts in the indictment ; but if, from the facts prov-
ed in evidence, the jury should be satisfied that t.he defendant, Baker,
now on trial, did combine and confederate with one or both of the other
defendants named in the indictment, with the intent imputed to them,
that would be sufficient to make up the offence. As the essence of the
crime was the combining, two persons at least must be engaged in it.
The judge then stated that, before going into a consideration of the evi-
dtncc, he would dispose of the ground which the defendant had set up
-when called upon for his defence ; which was, that the place where the
acts were committed was in the territory of the United States, and
that he, the defendant, was not amenable to the laws, or subject to the
jurisdiction of the courts of this Province. The judge then stated that
the question as to the national rights to this territory, now well known to
be in controversy, is one which this court is utterly incompetent to enter
into, and can have nothing to do with. It is a matter of state, to be set-
tled between the two nations. Great Britain and the United States; to be
dealt vsith by the Governments of the two countries, and not by this
court. The court will only inquire whether the place in question is ac-
tually in the possession and under the jurisdiction and laws of this Prov-
ince ; and, if so, the court will maintain that jurisdiction, and continue
the exercise and protection of those lows, until some act of the King's
Government shall effect a change. Theie can be no stronger evidence
of the possession of a country than the free and uncontrolled exercise of
jurisdiction within it ; and the court is bound by its allegiance to the
Crown, and its duty to the King's subjects, to act upon this, which it con-
siders as the only principle truly applicable to the case. This principle
has already been acted upon in this Province.

The learned judge then referred to the case of the sloop Falmouth, ad-
judged in the court of vice admiralty of this Province many years ago,
(1806 ) He stated this to have been the case of a seizure by a British
officer of an American vessel lying in the waters of Passamaquoddy bay,
for landing her cargo within this Province ; no foreign vessels being at
that time admissible into the ports of these colonies. The counsel for
the prosecution in that case went at large into the question of right to all
the islands in that bay, under the provisions of the treaty of 1783, and
contended that, by virtue of that treaty, all the islands, including Moose,
Dudley, and Frederick islands, then in the actual possession of the United
States, of right belonged to Great Britain ; and that no foreign vessel
could lawfully lade [land] a cargo in any part of that bay ; but the learn-
ed judge of that court at that time, now one of the judges of this court,
(Mr. Justice Botsford,) in pronouncing judgment, would not enter upon
the question of right to the islands, which he considered a matter of slate,



318 [ House Doc. No. 90. ]

for tho two Governments to decide u])on ; but finding the three islands
bcfoie named to be under the actual possession and jurisdiction of the
United States, he applied tlie principle of the law of nations applicable
to a water boundary between two dill'orent countries, and directed his
attention solely to the point whether the vessel laded her cargo on the
British side of a middle line drawn between these islands, then in the pos-
session of the United States, and the Biilish islands opposite. It thus
appears that this doctrine of taking the actual state of things as we find
thorn, and apjdying the law accordingly, has been already acted upon in
this Piovince, in an instance where it was favorable to citizens of the
United States ; and this coui t has no hesitation in applying the same
doctrine, which it consideis as the true doctrine, to the present case.
It is to be observed that the defendant in the present case has given no
evidence whatever of the place in question being in the possession or
under the jurisdiction of the United States; thit he docs not appear to
be in any respect an agent of that Government, or acting under its au-
thority ; and that what has been done must be considered as being alto-
gether the acts of unauthorized individuals. The place where the trans-
action occurred goes by the general name of the Madawaska settlement ;
and if this settlement shall appear to be, in point of fact, under the juris-
diction of this Province, the case must receive the same consideration,
and the conduct of the defendant be viewed in the same light, as if the
acts complained of had been committed in any other part of the Province,
one hundred miles further down on the river St. John, or even in this
town of Frederickton.

The learned judge then proceeded to read over the whole of the tes-
timony from his notes, commenting upon the several parts of it as he
went on. He considered the overt acts as to hoisting the flag of the
United States, with the express intention of subverting British mUhority,
as most distinctly and fully proved, and asked what more unequivocal in-
dication there could be of an intention to bring the King's Government
into contempt, and of unsettling the administration of the laws of the



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 41 of 56)