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The opinion of Great Britain, as to the practical jurisdiction exercised
over the territory in dispute, so late as the year 1814, may be seen by a
reference to the proceedings at Ghent. \Vhen proposing a revision of
the boundary line of Maine, with reference to convenience, and asking

326 [ House Doc. No. 90. ]

lliU tiacl now contested ;is a cession, (or which compensation was else-
where to be made, it is asscited by the Enj2,lish plenipotentiaries " that
ilie greater part of the territory in question is actually unoccupied ;" and
strenuous as were the eflbrts of his IMajcsty's ministers to adjust such a
\arialiun of line as might secure a direct cojjimunication between Quebec
and llalirax, it nowheie appears that a fat;t so important to their object
as ibo actual settlement of the country by persons recognising British
authority was conceived to exist.

At as early a period as the gradual advance of ^oi)ulation required,
the u^ual preliminary measures were taken by MassachuhClts, with a view
(0 the settlement of the vacant lands on her eastern fiontier. In 1801,
a grant of Mars Hill was made to ceitain soldiers of the Revolution, by
it public act of the Legislature of the State, which was followed by simi-
lai' proceedings in favor of others. That the countiy was not occupied,
in conformity to these grants, is to be ascribed to the delays usually at-
tendant upon the settlement of an exposed frontier, and to interruptions
growing out of apprehensions of hostilities with the neighl)oring Piovincc,
which were realized by the declaration of war made by the United States
against Great Britain in 1S12. Not only have many acts of authority in
the territory now in dispute been subsequently exercised by the Stales
of Mass:K:husetts and Maine, but, in 1820, the enumeration of the setlleis
on the iNJadawaska took place under the supreme authority of the United
States, and without, as far as can be ascertained, any remonstrance on
the part of Great Britain, or of the Province of New Biunswick.

In the case of the land on which his unfortunate fellow-citizen, now
i!ii])risoned at Frederickton, was arrested, the undersigned would remaik,
that, (hough it is situated in a section of country to which the general
description of Madawaska is applied, tlie territory on which INIi-. Baker
and other Americans have establis!;ed themselves is to the west of the
ancient settlement of the French Acadians ; and it is believed that no
part of the country where they reside, that is to say, of the tract on the
St. John's, between the Mariumpticook and St. Fiancis rivers, has ever
been in the possession of persons acknowleilging allegiance to the Biitish
Government. It thus appears that, to justify the unwarianted exercise
«)| power, specially coir.plained of, is wanting even the apology of former
us.ige, unsatisfactory as that would be.

'J'he undersigned is not ignorant of the inconveniences which may
arise from the disorder and anarchy to which the inhabitants of the con-
troverted district may be exj)osed, should no authority be exercised over
iIkmii, cither by the United States or the neighboring British Pi evince..
'I'bis is, howevei-, an c\il, to remedy which does not necessarily demand
llu! interj)osiiion of New I'l unswick more than of the State of Maine. It
is an iiiconvenience which the Uiuted States cannot consent to remove
by subjecting American ton itory to a foreign jurisdiction. It is believed
that, sliould t!ie settlers be left to themselves, they will institute some
form of (Government adapted to their condition, as was done for a long
uiiic on the Madawaska ; that, whether they do or not, it vill be oomiie-
i( nt to the (governments of Maine and New Brunswick, within their rc-
sp'M.'tive ack!iowledi,'('d limits, to guard against any disoidcrs. At all
events, thf (iovernment of (he United States cannot consent to the exer-
cise of any exclusive British authority within the contested territory,

[ House Doc. No. 9o. ] 327

founded on the plea of necessity ; and, as niany of the settlers are in-
truders on tlie soil, they can have no right (o complain of any disorders
among themselves, resulting from their own unauthorized acts of intiu-

The undersigned, on this occasion, cannot avoid o!)sorving that the
inconveniences which confessedly arise from the unsettled state of the
houndary between the dominions of the United States and Great Britain
constitute a most powerful reason for the adoption of every measure cal-
culated to ensure a prompt decision of the main question at issue. A
convention, formed with a view of submitting the conflicting decisions of
the commissioners under the 5th aiticle of the treaty of Ghent to the
arbitration of a friendly sovereign or State, having received the assent of
both the high contracting parties, became obligatory on them by an ex-
change of their respective ratifications on the 2d of April last. In the
same official communication in which the undersigned acquainted the Earl
of Dudley with his authority to exchange the ratification of the President
of the United States for that of the King, he announced his having re-
ceived instructions in relation to the further arrangements contemplated
by the convention ; and no effort on the part of the United States, which
could, with propriety, be made, has been wasting to fulfil, literally, the
stipulations by which the two contracting parties engaged to proceed in
concert to the choice of a friendly sovereign or State, as soon as the
ratifications should be exchanged.

The undersigned would fail in obedience to his instructions, were he
to conclude this note without declaring to Lord Dudley that, while the
President hopes that the British Government, participating in the desire
which he most anxiously feels to avoid all collision on account of the
temporary occupation of the territory in contest, will effectually inter-
pose its authority to restrain the Provincial Government from the exer-
cise of any jurisdiction over it. Such v.n interposition alone will supersede
those precautionary measures which the Government of the United States
will otherwise feel itself constrained to adopt.

The undersigned has the honor to renew to Lord Dudley the assu-
rances of his highest consideration.


Rt. Hon. Earl of Dudley, &c.

Mr. Lawrence to Mr. day.

Legation of the U.mted States,

London, June 26, 1 828.

Sir : Aftei" having, at our conference on the 19th instant, disposed of
(he business in relation to the arbiter. Lord Aberdeen directed the con-
versation to the subject of the jurisdiction to be exercisiHl over the dis-
puted territory pending the suit. He seemed to consider an exclusive
authority derived from a regular Government to be indi.«5pensable ; and
subsequently proceeded to maintain that to Great Britain this jurisdiction

328 [ House Doc. No. 90. ]

belongeil, at least till his Majesty was divested of it, by the deeiaion of
the aibitei'.

in teplyin,^ to the observations on the (irst point, I had liltle more to
i\u than lo repeat the explanations witii wliith you had finnished me, and
of u Inch I had availed myself in my oliicial note to Lord ])udley. I
cited the i^overnment w liich the settlers on the Madawaska had establish-
ed, in Older to point out how the evils of a temporary anarciiy mijiht be,
in a gieat degree, obviated, without the interposition of either Maine or
New Brunswick. 1 referred, as I hod done in conversation with his
lordship's predecessor, to the opinion expressed last summer by Mr
Canning, in an interview with Mr. Gallatin, and to the convention re-
irpecting (lie leiiitory west of the Kocky Mountains. Lord Aberdeen
here inquired whether I could enter into a similar arrangement with
regard to the country now under consideration. I observed that my re-
mark had been made merely by way of illustration ; that 1 had, by order
of the President, made a demand foi- the rediessof a specific injury com-
mitted on an Ameiican citizen, and had further required that this country
should abstain from the exercise of exclusive jurisdiction in a territory
which we maintained belonged to the United States ; that no answer had
been returned to my reclamations ; and that, therefore, in no event,
could a new proposition be expected from me ; that it would be compe-
tent for him, in replying to my note, to make any offer or suggestion he
might think fit as to the best mode of obviating inconveniences from a
disputed title, till the judgment of the King of the Netherlands is obtain-
ed ; and that his proposals, if it should not be in my power to accej)t them,
would be transmitted to my Government, who would undoubtedly give
them a respectful consideration.

The other topic on which Lord Aberdeen touched gave rise to a more
extended discussion. Taking the same view as Mr. Vaughan had done
in his corresjjondence with you, he maintained that, whatever might be
the true boundary, the jurisdiction over the disputed territory remained
with Great Britain till our title was comjjleted by an absolute delivery
of possession ; observing that this was the rule of the law of nations in all
cases of cession. I answered that the principle for which he contended,
and with v.hich I ^vas r.cquainted, was adopted for the regulation of a
third Power, or of individuals, in order to prevent the inconvenience
v.hich would result in an established community from doubts existing as
to t!ie period when a transfer of authority took place, and a new set of
duties and obligations commenced ; that in no case couKl one of the con-
tracting jKuties rejjly to the complaint of the exeicise of jurisdiction in
the teriit(jry which the other regarded as ceded to it, the fact that it had
never delivered up the possession. If it has a claim of right, on that
right, and not on the possession, must it support itself. If otherwise, as
the withholding of the possession after its being demanded is per se a
continued injury, to adduce it would be to rely on one's own wrong. I
lurther remarked that, even considering the treat} of 1783 as one of
cessioti, every delivery had taken j)lace of which the subject-matter was
susceptible. 'I'hc territory now disputed was never held by Great Britain
like a town or fortress. The possession in the Crown, anterior to the
devolution, was only constructive, of which, assuredly, the renunciation
in the treaty was fully competent to divest it ; that there had been no

[ House Doc. No. 90. J 329

uninterrupted exercise of an authority by the Pjovince of Nova Scoti;i
or New Brunswick since tlie independence of tlie United Slates; but
that, on the contrary, as had been elsewliere stated, as much at least
had been done on our side as on theirs towards obtaining a title by

I then proceeded to say that I had thought proper to show tl)at, even
on the principle assumed by this (iover tunent, its claim of exclusive juris-
diction was untenable; but that I totally denied that wo held any portion
of the territory embraced within the original States as a '■^ grant " or
" cession " from a foreign Power, in the sense which had been attributed
to those terms.

After assimilating the state of things lesulting from our Revolution, as
was done in my ofhcial note, to a division of the empire,! remarked that
there was nothing in the form of the treaty of peace, or in the circum-
stances under which it was negotiated, to tead to the conclusion that on
it depended our claims to territorial sovereignty. Even anterior to our
separation from the mother country, though we acknowledged the au-
thority of the King of Great Britain, we had not acquiesced in a Parlia-
mentary right to interfere with our internal regulations ; an attempt to
assume this power having been, indeed, one of the causes of the war.
From the declaration of independence, and long before its recognition
by England, we concluded treaties with foreign States, and exercised all
the other prerogatives of an established Government. I also adverted to
the terms, as well of the provisional articles of 1782, as of the definitive
treaty of the succeeding jear, in both of which the contracting parties
treated on the footing of the most perfect equality, the United States be-
ing considered in the full possession of all the usual attributes of national
sovereignty. A reference to the treaties with Franco and Spain, with
respect to Louisiana and Florida, will show that, where real cessions
were made, a different language was employed than in that of 1783,
where the terms " relinquishes all claims to the Government, propriety,
and territorial rights " imply a renunciation of what is no longer in pos-
session. Lord Aberdeen here interrupted me, and said that the treaty
was in the nature of a grant or cession, because England gave every-
thing, and received nothing. To this I replied, that it was not permitted
to open a solemn instrument, by which an agreement had been fairly and
honestly effected between individuals ; much less could it be done in the
transactions between States, in order to inquire into the consideration
mutually given and received, with a view to change its legal character;
and that it was, theiefore, unnecessary for rne to say anything as to the
object which England had in view in saving further war expenditure,
securing her remaining Provinces, and obtaining the other benefits of
peace ; and I would only refer to the face of the instrument itself to
ascertain its nature. If, 1 added, by tracing the boundaries in the treaty,
England ceded to us the territory on one side of the line, as described
in the second article, we ceded to her the territory on the other side, on
which indeed we had, at different periods of the war, more or less pre-
tension. The most correct way, however, of viewing the subject was
not to consider that the treaty made grants or cessions to either party,
but that the line was indicated, as is expressed in the article itself, to
prevent future disputes; a motive which frequently has led to a conven-
tion of limits between two Governmeats of equal antiquity.

330 [ House Doc. No. 90. ]

As, however, Lord Ab.eideen still intimated that, whatever view other
nations might lake of the cjuestion, it could not be expected that Great
Ijiitain would consider the sovereignty of the United States as existing
anterior to 1783, or regard the recognition of independence, so far as
territory was concerned, in any other light than a cession, I observed
that the main question in dispute between the countries having been
(iisposcii of, it was desirable that dillicukies as to temporary jurisdiction
should not be occasioned by the discussion of an abstract proposition. In
the inference which it had been attempted to draw from liie principle of
cession, connected as it was with the character which had been ascribed
to the treaty of 1783, I felt confident that my Government could not ac-
quiesce. If admitted, it might be construed so as to involve the most
monstrous consequences, and perhaps be applied in other cases than in
the one under consideration. There was, however, another view of the
subject, which I would suggest. The independence of the United States
in general is not only acknowledged by the treaty, but also that of each
State by name, Massachusetts being enumerated with the others. If we
divest the question of its national chaiacter, and regard it as a dispute
between Maine and New Brunswick, succeeding to the respective rights
of Massachusetts and Nova Scotia, the aigument from the principle of
cession would operate altogether in our favor, for it can haidly be pre-
tended that, when Nova Scotia, after having been annexed to Massachu-
setts under the charter of William and Mary, was transferred to a sepa-
rate Provincial Government, and subsequently to the French, there was
in either rase any other delivery of possession of the unsettled territory
than took place on the conclusion of our revolutionary war.

I cannot llatter myself that I have been able to change the views of
Lord Aberdeen, but it is proper for me to add that he said that he would
give to my observations a full consideration, and requested me not to
regard what had fallen from him as the final opinion of the British Gov-

I have the honor to be, with the greatest respect, sir, your most obe-
dient servant,


Hon. He.nry Clay,

Secretary of State^ Washington.

Lord Aberdeen to Mr. Lawrence.

Foreign Office, August 14, 1828.

The undersigned, his Majesty's Principal Secretary of State for For-
eign Alfairs, has the honor to acknowledge the receipt of the note which
Mr. Lawrence, chaigt; d'aifaires of the United States of America, ad-
dressed to his Majebty's Piiiicijial Secretary of State for Foreign Affairs
on the oi\\ of May, containing representalii/US upon certain occurences
in that district on the northeastern frontier of the United States, the i ight
of possession of which is now, l)y mutual agreement of the two countries,
and in compliance with the j)rovisions of the treaty of Ghent, referred
to the arbitration of a friendly Power.

[ House rjoc. No. 90. J 331

Mr. Lawrence's representations, and the demands founded upon them,
may be conveniently divided into two heads:

1st. The leprescntation acjninst the arrest of John Baker, a citizen of
the United States, and residinj; within the said territory, and his removal
by the provincial authorities of New lirunswick to the capital of that
Province for trial, on a charge of misdemeanor, and the dcn)and for the
"liberation of Mr. Baker, and for the grantinc; to him a full indemnity
for the wrongs which he has suliered by the seizure of his person within
the limits of the State of Maine, and his subsequent abduction and con-
hnement in the jail at Fredcrickton."

2(1, The representation against the exercise of jurisdiction by British
authorities within the territory in question, and the demand " that the
Government of New Brunswick shall cease from the exercise of all and
every act of exclusive jurisdiction within the disputed territory, until
the question of right is settled between the two Governments of Great
Britain and the United States."

The undersigned deems it to be his duty to remark, in the outset, with
reference to the designation which Mr. Lawrence has given to the place
wherein John Baker was arrested, as being " within the limits of the
State of Maine," and with reference also to the phrase "American ter-
ritory," applied by Mr. Lawrence, in another part of his note, to the
district in question, that, if the United States consider the tract of country
wliich forms the subject of the arbitration now in progress as unquestion-
ably their own, the British Government are, on their side, as firmly con-
vinced of the justice of their claim to designate those lands as territory
belon";insi: to the Crown of Great Britain.

This, however, is not the point for present consideration. The ques-
tion of sovereignty, which depends upon the definition of the true
frontier line between the two countries under the treaty of 1783, having
been referred, agreeably to the provisions ol the treaty of Ghent, to the
arbitration of a friendly State, it is a question of actual jurisdiction alone
which can now be discussed, without interfering with the Province of the
arbitrator ; and between these questions — of sovereignty, and the actual
exercise of jurisdiction, the undersigned conceives there is a broad and
clear distinction.

With these preliminary observations, the undersigned will proceed to
remark upon the first demand made by Mr. Lawrence ; and, if it has been
a source of regret to the undersigned that the various and pressing calls
upon the attention of his Majesty's Government, at this season of the
year, have prevented him from returning an eailier answer to Mr. Law-
rence's note, addressed to his predecessor, that regiet is materially
diminished by the consideration that this delay lias enabled the under-
signed to put Mr. Lawrence in possession of the proceedings on the trial
of John Baker, at Frederickton, in New Brunswick, (a copy of which
he has now the honor to enclose,) which he feels persuaded will, in
conjunction with the remarks he has to offer upon them, satisfy Mr.
Lawrence that the prosecution instituted against Jolin Baker by the
Government of New Brunswick was rendered indispensably necessary
by the acts of that individual ; that it has been conducted v.itii a scrupu-
lous regard to justice ; that the sentence which has been passed upon
him is, under all the circumstances of the case, a lenient one ; and that,

332 [ House Doc. Xo. 90. ]

in the whole course of these proceedings, no privilege which Baker
could justly claim under tiie law of nations has been violated.

Postponing for the present any answer to Mr. Lawrence's remarks on
the gencial (luestion of jurisdiction within the district in which Joiin
Baker resided at the period of his arrest, and assuming, in this place, that
such jurisdiction did belong to the Government of New Brunswick, the
undersigned will jiroceed to show, from the history of Baker himself, that
the exercise of it, in the particular case of that individual, is singularly
free from any possible imputation of hardship or severity.

Mr. Lawrence will see, from the repoit of Mr. Barrell, the agent
specially appointed by the Government of the United States to inquire
into this transaction, (which report has been officially communicated to
his Majesty's Government, and is doubtless in Mr. I^awrcnce's posses-
sion,) that John Baker, who had, from the year 1816 until 1820, resided
in the British Provinces of New Brunswick and Canada, came, in the
latter year, to reside in the Madawaska settlement, where he joined his
brother Nathan, then carrying on trade in connexion with a British mer-
chant of the name of Nevers, established at the capital of New Bruns-
wick ; and tiiat, after the death of his brother, in 1821, John Baker
continued to occupy the land on which his brother had originally settled,
and to carry on the same business as before, under the said Nevers. It
furtiier appears, as well from Mr. Barrell's statement as from the evi-
dence on Baker's trial, that Nathan Baker had, so long ago as the year
1819, formally admitted the jurisdiction of the Government of New
Brunswick over his said possession ; that Joiin Baker's partner, Nevers,
with Baker's concurrence, applied to the Government of New Bruns-
wick for a grant of the same land, for the benefit of John Haker; that,
in 1822, Baker himself applied for and received from the Government of
New Brunswick the provincial bounty for the cultivation of grain upon
that land ; and tiiat, so late as the year 1825, he had voluntarily applied
to the British authorities for the enforcement of the British laws among
the Ameiican settlers, both in civil and criminal matters: from all which
circumstances it is manifest that the seditious practices for which Baker
was prosecuted were not committed in ignorance of the authority which
had uniformly been asserted and exercised by the Government of New
Brunswick, and of which he had himself, in common with the other set-
tlers, claimed the benefit and protection.

It must be wholly unnecessary for the undersigned to insist upon the
serious nature of the offences tliemselves, with which John Baker was
charged, and of which he was found guilty. The several acts of outrage
and sedition proved against him on the trial were such as no Govern-
ment actually exercising jurisdiction, and therefore responsible for the
])eace and security of the community existing under its protection, could
allow to pass unpunished, whether the perjietratois of such offences
lia|)pened to be its own subjects, or aliens settled within its jurisdiction,
and (h(;refore owing local and temporaiy ol)edience to its laws.

Such l)eing the (acts more immediately relating to the individual, Ba-
ker himself, the undersigned has now to beg the attention of Mv. Law-
rence to those which relate to the settlement in which he resided.

It is shown by the report of Mr. Barrell, and confirmed by the evi-
dence on Bakei'> tiial, that the Madawaska settlement was (oiincd soon

[ House Doc. No. 90. ] 333

after the treaty of 1783, by British subjects, descendants of the original
French colonists of New I3runs\\ ick. 1( is staled on oath by Simon Ilib-
CMt, a witness on the trial, who lias lived foity years in the settlement,
and had received a tyrant of land iVom the Piovincial (Government two
or thiec years after he settled there, that he considered himself to have

Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 43 of 56)