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

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Piovince, than the erecting of a foreign standard with this declared pur-
pose. With respect to the transaction with the postmaii, he directed the
Jury that if they considered the acts of the defendant in t'.iis instance to
have proceeded from the combination and confederacy to subvert the
King's authority, the defendant was properly chargeable with them under
this indictn)ent; and that, in forming their judgment of this and all the
other facts detailed in evidence, they should tike into view all the cir-
cumstances of time and place, and of action, in determining the charac-
ter- ol the several transactions. With respect to the written agreement,
by whicli they bound themselves to resist the British laws, he thought
that was siithciently proved \\ ith regard to the American citizens ; but
it was not made out in proof that this was the same paper which was
handed to the French settlers; but the learned judge said that he could
not admit of any distinction in this respect between aliens, being under
the jurisdiction ar>d protection of the British laws, and natural born sub-
jects ; the; former owed a local alUgi ince ; and what would be a l^reach
of the laws by the one would be so by the other.

'i'he learned judge, in closing, stated, that if, in deterruirring the pres-
ent case, this court was to undertake to ent r upon a question of a con



[House Doc. No. 90. ] 319

flict of rights between the two nations, it might be disposed to approach
'it with a degree of trepidation ; but this case was altogether unembar-
rassed by any such considerations. It presented a chain of evidence of
clear possession and undisturbed jurisdiction on the part of this Province,
from the period of its first erection down to the present time — a space of
more than foity years. One of the oldest inhabitants in the Madawaska
settlement had proved tliat he removed thither from the h)vver part of this
Province forty years ago ; that he, and all the settlers there, always con-
sidered themselves as living under this Government. It is also proved
that these inhabitants have received grants of land from this Government,
and have, from the beginning, been enrolled in the militia ; that they
have voted at elections for the county of York ; have applied to the pro-
vincial courts for redress in all suits at law ; and have unilorndy exercised
all the privileges, and been subject to all the duties, of other inhabitants
of the Province ; excepting only that the sheriff states that he has not
summoned them to attend on juries at FredericUton, by reason of their
great distance ; but he expressly declares that he has always been in the
habit of serving writs throughout the whole of that settlement, as much
as>in any other part of his bailiwick. It appears also that the defendant.
Baker, considered himself as living wiihin the territory, and under the
jurisdiction of this Province ; that he applied to Mr. iMorehouse, the
provincial magistrate, for processes to recover his debts from inha!)itants
in the Madawaska settlement ; that he received the provincial bounty
for grain raised on land, which there can be no question is the land on
w hich he now resides ; and this on his own affidavit, stating himself to
be John Baker, of the paiish of Kent. It further appears that he attend-
ed ^ provincial surveyor in laying out this very land, for which a warrant
of survev, under the authority of the Province, was in ?. course of execu-
tion, giving directions as to the course of the lines ; the grant being in-
tended for the benefit of Baker, although it was to be taken out in the
name of Nevers, a British subject. Baker himself, also, had an inten-
tion of being naturalized, and stated to one of the witnesses, Mr. George
West, that he had resided the necessary time, and wished to know what
other steps were necessary (or this purpose. This conversation taking
place on the spot where he lived, at the head of the Madawaska settle-
ment, and at a time when logs cut by him had been seized as being cut
on Crown lands without license ; and Baker claimed to be dealt favorably
with by reason of his residence within the Province, and his intention to
become naturalized. The learned judge also stated, that it appeared
from the evidence that there was no line of division to be drawn between
any parts of that whole settlement, as to the possession and exercise of
jurisdiction by this Province ; that he could not imagine any principle
upon which any such line of division could be made ; that one of the wit-
nesses spoke of the settlement having, when he first knew it, commenced
seven miles above the Great Falls ; that it has since extended downwards
to within two or three miles of the Falls. It has also been gradually ex-
tending upwards, and all the inhabitants, in every part of it, were equal-
ly under the jurisdiction of this Province, and entitled to the benefit and
protection of its laws; and if they were to be transferred from this juris-
diction and protection, it must be by some act of the King's Government^
competent for that purpose.



320 [ House Doc. No. 90. ]

The learned judge, uith tliese observations, left the case to the jury,
directing them to consider it in the same light, and to give the defend-
ant the benefit of the same considerations, that they would in the case of
any othei inhabitant of the Province.

'i'he jury retired from the box, and, after about an hour's deliberation,
returned into court with a verdict of guilty.

The defendant was then required to enter into recognizance to appear
on Monday next to receive the sentence of the couit. The same bail
were accepted as before, in the same amount,

The Attorney General stated to the court that he should enter a noli
prosequi on the ex officio information uhich had been filed against the
defendant ; and also on the indictuient which had been found against
John Baker and six others lor a riot, so far as regarded the present de-
fendant.

The witnesses were informed that their further attendance would not
be required.

Monday, May 12, 1828.

Present : His honoi tlie Chief Justice, Judge Bliss and Judge Chip-
man.

The defendant being called, and appearing, the Attorney General pro-
ceeded to make several observations on the case, and concluded by mov-
ing the judgment of the court.

His honor Mr. Justice Bliss then inquired of the defendant if he had
an> thing to say in mitigation, or any affidavits to produce.

The defendant said he had little to say. He was brought there and
made amenable to the jurisdiction of the court, and must, of course, sub-
mit. He had no affidavits to produce ; there were some facts which, if
thty had been brought forward, might have been mateiial ; but as he was
not prej)arcd with the whole, he had thought it better not to adduce any
proof. He concluded by submitting himself to the consideration of the
court.

lilr. Justice Bliss then proceeded to pass sentence, to the following ef-
fect :

That the defendant had been indicted by the grand jury of the county
of York for a seditious conspiracy, entered into by him and others, with-
in the jurisdiction of this court, to which he had j)leaded not guilty, al-
leging, at the same time, that he did not consider himself anienable to
the process of this court, being a citizen ol the United States, and that
the ofl'ence charged was committed within their territory ; but the court
could not admit this to be the case, it appearing clearly that the Mada-
waska settlement, where the oil'ence was committed, has been, from the
first election of the Piovince, hitherto, under our laws, and subject to our
jurii^^diction ; and that the defendant, after a very fair and full investiga-
tion of the case, had been convicted by a jury of the country ; and it now
romaitLS for the court to pass their sentence upon him for this ollence ; in
doing which their object was to treat him with that lenity which, so far
38 was consistent with the ends of justice, is uniformly extended to his
Majesty's natural born subjects; and, although the court considered the
offence of which he had been found guilty ol a very aggravated nature, they
have had regard to his previous long imprisonment ; and their object being



[ House Doc No. 90. ] 321

to secure the fukire peace of the country, and not to pass a vindictive
sentence personally against him, they had awarded the punishment ac-
cordini:!;lv ; and did sentence him to he imprisoned in the common jail of
the county of York for the (eiin of two calendar monilis, and to pay a line
to our lord the King of twenty-five pounds, and reinain committud until
the sumo was paiil.

The defendant, John Baker, was then taken into custody hy the sheriif.



Mr. Clay to Mr. Lawrence.

Department of State,

Washington, March 31, 1828.

Sir : I transmit herewith a copy of a correspondence which has passed
between Mr. Vaughan, the British minister, and this Department, re-
specting the exercise of jurisdiction, on the part of the Government of
the Province of New Brunswick, within the territory respectively claim-
ed hy the United States and Great Britain, on our northeastern horder.
In the course of ityou wiil remark that we have demanded tlie liberation
of John Baker, a citizen of the United Stales, and full indemnity for the
wrongs which he has suffered by the seizure of his person within the
limits of the State of Maine, and his subsequent abduction and confine-
ment at Frederickton in jail. We have also demanded that the Govern-
ment of New Brunswick shall cease from the exercise of all and every
act of exclusive jurisdiction within the disputed territory, until the ques-
tion of right is settled by the two Governments. The considerations
which have led to those demands are so fully set out in the correspond-
ence, that it is not deemed necessary now^ to lepeat them. The Presi-
dent charges me to instruct you to address an otikial note to the British
Government, calling upon it to interpose its authority with the Provincial
Government to enforce a compliance with both demands. The Govern-
ment of the United States cannot consent to the exercise of any separate
British jurisdiction within any part of the State of Maine, as the limits
of that State are defined by the treaty of 1783, prior to the decision of
the question of title. And, if there be a perseverance in the exercise
of such jurisdiction, this Government will not hold itself responsible for
the consequences. It may, and probably will, be urged, that, if the
Province of New Brunswick should abstain frow exerting its authority
over the inhabitants situated on the controverted ground, disorder and
anarchy amongst them will ensue. Should such an argument be brought
forward, you will reply that the inhabitants will no doubt institute some
form of government themselves, adapted to their condition, as they did
for a long time on the Madawaska ; that, whether they do or not, how-
ever, it will be competent to the Governments of Maine and New Bruns-
wick, within their respective acknowledged limits, to guard against any
disorders; that the Government of the United States cannot consent to
the exercise of any exclusive British authority within the contested ter-
ritory, founded on the plea of necessity ; and that many of the settlers,
being intruders upon the soil, can have no right to complain of any disor-
ders among themselves, resulting from their own unauthorized intrusion.
22



S'22 [ House Doc. No, 90. ]

'I'he Presiilont hopes tiiat the British Government, participatini;; in the
desire which he most anxiously feels to avoid all collision on account of
a temporaty occupation of the territory in contest, will effectually inter-
pose its authority to restrain the Provincial Government from the exer-
cise ol any jurisdiction over it. Such an interposition alone will super-
sede those i)recautionaiy measures which this Government will other-
wise feel itself constrained to adopt.

I also transmit heiewith copies of the report of Mr. Rarrell, and of Mr.
Davis, who were respectively deputed by the (Tovoinments of the United
States and the State of Maine to proceed to the disputed territory, and
to ascertain on the spot the causes of the recent disturbances which have
cccuired there.

I am, respectfully, your obedient servant,

H. CLAY.

To VV\m. 13. Lawrenck,

Charge (TAJaires^ London.



List of papers transmitted with the foregoing*

Mr. Vau2;han to Mr. Clay, January 16, 1827.

Mr. Claf to Mr. Vaughan, 18 January, 1827.

Same to same, 14 September, do.

Mr. Vaughan to Mr Clay, 17 do. with two enclosures.

Mr. Clay to Mr. Vaughan, 19 do.

Mr. Vaughan to Mr. Clay, 26 October, 1827, with one enclosure.

Mr. Clay to Mr. Vaughan, 17 November, do. with three enclosures.

Mr. Vaughan to Mr. Clay, 21 do. do. enclosures 1 to 6.

Same to same, 20 do. do.

Mr. Clay to Mr. Vaughan, 20 February, 1828.

Mr. Vaughan to Mr. Clay, do.

Mr. Clay to Mr. Vaughan, 17 March, do.

Mr. Vaughan to Mr. Clay, 25 do. do.

Report of Mr. Barrell, and accompanying documents.

Report of agent of Maine, and accompanyinng documents.



Mr. Lawrence to Lord Dudley.

16 Lower Seymour Street, 3ia«/ 5, 1828.
The undersigned, charge d'afl'aires of the United States of America,
regrets that he is com})elled to call to the notice of his Majesty's Piinci-
pal Secretary of State ior Foreign Affairs acts on the part of the Govern-

• The correspondence enbrHced in this list constitutes a part of tlie forepoing series, and
is ii<<t, therefore, sent to the President in immediate connexion with the inslrudion to Mr.
Luwrcnce.

The report of Mr. Uarreil wnd the accompanying docvimtnts were commimicHted to the
Sen;it<- Ml the last session, and piintLcl h}' oidi-r of that hody. See Senate documents, l>,t
session 20lh Conj^etts, No. l.^O.

'I'he lejiori «>4 the Hpent of Maine atnl llie uccompanyinff papers were printid under an
ordi:r ol the Senate ol tiic United States ol the 14Ui of April l;ii>t. Sec Senate documents,
Ist session iOih Congre;8, No. 171.



[ House Doc. No. 90. ] 323

ment of tlie Province of New Brunswick, within the territory chiimed
by the United States and Great Britain, respectively, not only wholly in-
consistent with that mutual forbearance which, it has been understood,
should govern the pioceedings of both countries durins; the pendency of
the (juestion of boundaries, for the decision of which arran<:enients have
leoently been made, but of a character to lead, by invitin;^ retaliation, to
diliiculties of the most serious nature.

The proceedings complained of, to which it will be the duty of the un-
dersigned particularly to refer, took place in settlements near the Aroos-
took and St. John's rivers, within the territory which is, and always has
been,' considered by the United States as a part of the present State,
formerly District, of Maine. It api^cars, from official documents, that, ia
this section of country, various attempts to exercise exclusive jurisdiction
have been made by the Lieutenant Covernor of New Brunswick ; that
American citizens residing within the territory in dispute have been sub-
jected to an alien tax; that they have been compelled to serve in the
British militia ; that the Provincial Government has undertaken to issue
civil process against them for enforcing the collection of debts, and for
other purposes ; that they have been siuiimoned to appear befose the tri-
bunals of New Brunswick for intrusion on the land occupied by them, as
if it was the uncontested property of the British Crown ; and that they
have been prosecuted before these foreign courts for alleged political of-
fences, which, if punishable at all, were only cognizable by the authoii-
ties of their own country.

These attacks on the rights of citizens of the United States having
formed the subject of a coriespondenee betv.een the British minister at
Washington and the American Secretary of State, which, it is under-
stood, has been transmitted to Lord Dudley, the undersigned does not
deem it necessary to enter into the details of the different individual acts
of exclusive jurisdiction that have been matters of complaint, but hastens
to a case vrhich he is instructed to bring particularly under the considera-
tion of his Majesty's Government, with a view to the redress of which
it may be susceptible. John Baker, a citizen of the United States, resi-
ding on a tract of land situated at or near the junction of the Mariump-
ticook with the St. John's river, and held by him under a deed from the
States of Massachusetts and Maine, was arrested in his own domicil, on
the 25th of September last, under circumstances of aggravation. While
Mr. Baker and his family were asleep, his house was^surrounded bv an
armed force, and entered by a person of high official character in' the
Province of New Brunswick, by the command of whom Mr. Baker was
seized and conveyed to Frederickton, and there committed to jail, where
he is still confined on a charge of an alleged misdemeanor, growing out
of a denial of British jurisdiction in the territory where he had settled,
as above stated, under the authority of a grant from two States of the
American Union. This transaction having received the special consid-
eration of the President of the United States, the undersigned h s been
charged to call upon the Government of Gieat Britain to interpose its
authority with the Provincial Government, in order to the lib-ration of
Mr. Baker, and to the granting to this American citizen a full indemnitv
for the wrongs which he has suffered by the seizure of his person wiiiiin
the limits of the State of Maine, and his subsequent abduction and con-
finement in jail at Frederickton.



324 r House Doc. No. 90. J

The undersigned is further instructed to require that the Government
of New Brunswick shall cease Iroin the exercise of all and every act of
oxclu.sive jurisdiction within the disputed territory, until the question of
ri'^lil is settled by the two Governments ot Great Britain and the United
States.

The motives which have led to these demands may be suiliciently in-
feneil Irom a consideration of the occurrences already cited, in declaring,
through the undersigned, that it cannot consent to the exercise of any
separate British jurisdiction, within any part of the State of Maine, as it
understands the limits of that State to be defined by the treaty ot 1783,
prior to the decision of ihe question of title, the Government of the Uni-
ted States is only protesting against unjustifiable encroachments on its
sovereignty, and asking from Great Britain what it is willing on its side
to accord — that fort^earance which the present state of the controversy
most strongly inculcates. Indeed, it is only by adopting such a course,
that the collisions, which would arise from an attempt by each party to
give effect to its own pretensions, can be avoided. The importance of
abstaining from any act which might jeopard the amicable relations be-
tween the two Powers was early perceived ; and instances have not been
wanting in which they have both been restrained, by considerations of
piudence and mutual respect, from exercising acts of exclusive jurisdiction
within the disputed territory. To a complaint made so far back as the
vear 1818, by Mr. Bagot, at that time his Majesty's minister in America,
of irregular settlemenis attempted by citizens of the United States on the
lands ill controversy, the most ready attention was paid. On the other
hand, licenses to cut timber, granted by the provincial authorities, have
been revoked, and the practice of cutting and removing the timber has
been understood by the Government of the United States to have been
discontinued. Recent cases have also occurred, in which the interposi-
tioji of the American Government, requested by Mr. Vaughan, has been
promptly accorded, in the spirit of that rule, ol the expediency of which
no belter evidence can be required than the necessity which has given
rise to the present communication.

The undersigned purposely avoids any observations which can lead to
a premature discussion on points which are to be submitted to a tribunal
selected by the two I'owers. However unanswerable he may conceive
the ai'zuments by which the claim of his country to the teiritory in ques-
tion may be sustained, he is aware that it can be attended with no advan-
tage to adduce them on the present occasion.

The undersigned also regards as inadmissible all attempts to defend
the exercise of British authority, in the territory referred to, during the
lime which may intervene before the decision of the arbiter is made, by
asserting a title derived from possession. Considering the grounds on
which the claims of the United States are founded, it is not perceived
how ar'^umenls drawn either front first occuj)ancy or immemorial posses-
sion <'n be made to bear on the final determination of the principal sub-
ject ill discussion between the two countries, or how they can affect the
questi< ri of temporary jurisdiction. Before the independence of the Uni-
ted St.tes, not only the territory in dispute, but the whole of the adjoin-
ing I-i<>\ince and State, was the property of a common sovereign. At
the liiiio of the division of the empire, the United States and Great Brit-



[ House Doc. No. 90. ] 325

ain defined, in express terms, tlieir resjicctivc territorial limits ; ;iiul it
will not, it is presumed, be asserted tliat, on concludinji; the treaty of
1783, the juiisdiction ol" the one party over the country allotted to it was
less complete than that which was granted to the other over its territory.
The treaty hy which the separation ol' the domiiiions of the two Povers
was ejected may be assimilated to a deed of partition between individu-
als holdiuii; pioperty in common. From the exchanp;e of ratifications, the
only doubts which could arise were necessarily lestticted to the inter-
pretation of its language. Nor has anytiung occurred siifce the revolu-
tionary war to vary the rights of Great Britain and America. The object
of the 5th article of the treaty of Ghent was merely to direct the practical
business of surveying and marking out the boundary line, in order to give
effect to previous stipulations.

To avoid, however, any misconstruction that might be drawn from his
silence on the subject of a possessory title, the undersigned deems it
'proper to declare that New Brunsw^ick can adduce no claims, by \sbich
a jurisdiction derived from ])icscr!ption or the first occupancy of the coun-
try can be sustained ; and he is far from admitting that, in this view of
the case, the pretensions of the United States are less valid th.an those
of Great Britain.

It appears, from the best information that can be obtained, that no set-
tlement had been made in the territory at present in dispute prior to the
American Revolution ; that, subsequently to that event, a small one was
formed at or near the Madawaska, by French fiom Nova Scotia, who had
always previously resisted -the English authority ; and that, though some
grants of land may have been made to these settlers by the Provincial
Governm.ent, before the determination of the river St. Croix, in pursu-
ance of the treaty of 1794, the acts of authority which took place were
few and doubtful; nor is it believed that they were, till very recently,
known to, much less acquiesced in by, Massachusetts, to whom, till the
separation of Maine, the jurisdiction as well as soil belonged. There was
little occasion for the employment of criminal process among the lelicsof
a primitive population, as these settlers were represented to be, of a "mild,
frugal, industrious, and pious character," desirous of finding a refuge un-
der the patriarchal and spiritual power of their religion. For the arrange-
ment of their civil affairs of every description, including their accidental
disputes and differences among themselves, they were in the habit of
having recourse to a tribunal of their own establishment, formed of one
or two arbiters, associated with the Catholic priest.

The settlement on the Aroostook was made within the last six _\ c.as,
partly by citizens of the United States, partly by British subjects, but
with an impression, entertained by the whole community, that they were
establishing themselves on American territory. It was not, indeed, till
within three or four years that the Provincial Government undertooi; to
subject these settlers to civil process ; and last summer, for the first lime,
proceedings for trespass and intrusion on the Crown lands were in-iitu-
ted against them.



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 42 of 56)