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always lived under the Government of New Brunswick, and that all the
Madawaska settlers lived under the same Government. Testimony to
the same elfect is given by Mr. Fraser, a magistrate, who has been ac-
quainted with the Madawaska settlers since 1787 ; and who further
proves that the settlers had, to his own knowledge, for a long scries of
years, voted at elections like other subjects of the Province of New
Brunswick ; and, linally, Mr. Barrell reports that " the laws of New
Brunswick appear to have been always in force since the origin of the
settlement ; and that the settlers have acquiesced in the exercise of Brit-
ish authority among them, and have for many years had an organized
militia."

It is further proved by the evidence on the trial, and is admitted by
Mr. Barrell, that the lands on which Baker resided form part of the
Madawaska settlement; and the acts of Baker himself, and of his brother,
who preceded him, show that they consider the land possessed by them
successively, to be situate under the authority of the Government of New
Brunswick.

It is, moreover, not an immaterial fact, that the settlement thus origin-
ally formed, upwards of forty years ago, by settlers from New Bruns-
wick, was found by Mr. Barrell, at the period of his visit in November
last, to contain, out of a population of 2,000 souls, not more than 25
American settlers.

This exposition of the substance of the information collected by the
agent of the United States, corroborated as it is by the evidence on oath
given before the supreme court at Frederickton, together with the de-
tailed narrative of the proceedings on the trial, will, the undersigned
trusts, satisfy Mr. Lawrence that the opinion which he has expressed in
his note, " that no part of the tract in which Baker resided, had ever
been in the possession of persons acknowledging allegiance to the Brit-
ish Government," is founded in error; and tiiat full and substantial justice
has been done to Mr. Baker. The undersigned will therefore proceed
to the second point to which he has proposed to advert, namely, Mr.
Lawrence's demand " that the Government of New Brunswick should
cease from the exercise of all and every act of exclusive jurisdiction
■within the disputed territory."

The consideration of this question naturally brings before the under-
si'^ned Mr. Lawrence's assertion, "that New Brunswick can adduce no
claims by which a jurisdiction derived from prescription, or first occu-
pancy of the country, can be sustained."

The reply to this allegation has been, in a great measure, anticipated
in the course of the preceding observations on the case of John Baker.
But the undersigned desires to call the attention of Mr. Lawrence more
distinctly to the following important facts :

First. To the fact ( which the undersigned will state in Mr. Lawrence's
own words) that " before the independence of the United States, not only
the territory in dispute, but the whole of the adjoining Province and State,
was the property of a common sovereign."



334 [ House Doc. No. 90. ]

Secondly. To the fact that the United States rest their claim to the
possession ol" the teiritory upon the treaty of 17S3; hy whicli treaty the
intlepcndcMice of the United States uas recoji;nised by Great Britain, and
their boundaries attempted to be defined ; thereby, in etiect, admitting
the previous title of (ircat Britain to tiic teiritoiy in (jueslion.

And, in the thiid phice, to the facts (which have either been pioved
upon oath, on Baker's trial, or admitted by Mr. Barrell, the agent of the
Ut»ited States) that no actual delivery of tlie territory into the possession
of the United States has liitheito taken place; that from and immedi-
ately after the conclusion of the treaty of 1783, whatever rights of sov-
ereignty have been exercised in that territory, have, until the recent
attempts of the State of Maine, been exercised by Great Britain ; that
the lust settlers v.ere colonial subjects of his Majesty ; that the inhabit-
ants have always hitherto been treated as Britisii subjects ; that they have
for many years voted at elections like the other natives oi the Province;
that they have long had an organized militia, and have considered them-
selves to be living under British protection and jurisdiction ; and that,
until a very recent period, the right of Great Britain to exercise acts of
sovereignty within this territory has never been called in question by
the Government of the United States. Uven in the representation ad-
dressed by Mr. Clay to his Majesty's charge d'affaires at Washington, on
the 27th of March, 1825, (which contained the first objection of any kind
advanced by the Government of the United States to the proceedings of
the British, in the district jointly claimed by the two Governments,) that
objection was not directed against the exercise of jurisdiction on the
part of Great Britain, ( which was then and had long been notorious,)
but against the depredations of imiividuals ; such as tlie cutting of wood,
and other acts tending to render the district of less value to the party to
whom it should finally be assigned.

In the face of this accumulated evidence that Great Britain has never
yet been practically divested of her ancient right of jurij^diction, it can-
not reasonably be contended that the national character of the territory
lias undergone any change since the period antecedent to the treaty of
1783. It has, indeed, been formally admitted, both by Great Britain
and the United States, that the light ef eventual sovereignty over that
district is a question remaining in dt)ubt ; but it is consistent with an ac-
knowledged rule of law, that, where such a doubt exists, the party who
has once clearly had a right, and who has retained actual j)ossessi()n,
shall continue to hold it until the (question at issue may be decided.
This territory, therefore, ought, upon every principle, to be considered,
lor the present, at least, as subject to the authority and jurisdiction of
Great Britain ; unless treaties subsequent to that of 1783 shall have im-
posed an obligation on her to j)ursue a different lir.e of conduct with
lespect to it.

None of the treati<'S, howevc r, |)ostc'rior to that of 1783, allude to the
question of jurisdiction ; and liom their silence on this point, it may faii-
Iv be inferred that the United States, who cannot be supposed to have
been ignorant of the acts of British authority \vhich had been exercised
throughout the territory in (juestion for so many years, did not entertain
any doubt of the riti,ht of Great Biifain in that lespect. P^or if such had
been the case, they would surely have stipulated for the introduction into



[ House Doc. No. 9o. ] 335

the latter treaties, especially inti) tiiat of (ihent, of some provision re-
spectiiii!; the exercise of that authority against which Mr. Lawrence is
now instructed to protest.

The undersigned cannot acquiesce in Mr. Lawrence's extension to
this question ol jurisdiction of that i ule of forbearance which has been
inculcated on both sides, with regard to tlje exeicise of otiier acts of
sovereignty, not necessary ior the due administration of the territory
now under consideration. With respect to such jurisdiction, the under-
signed must be permitted to observe tiiat the ciicumstanccs ol' the two
countries are extremely difl'erent. Tlie United States have never been
in possession of the territory; their title to it under the treaty of 1783
is not admitted by Great Britain; and every act of jurisdiction done by
the United States is an assumption of an authority which they did not
previously possess. On the other hand. Great Britain has never parted
with possession ; the jurisdiction which she now exercises is the same
which belonged to her before the treaty of 1783, and which she has ever
since that j)criod continued to exercise within the limits of the territory
in question. The undersigned need haidly point out to Mr. Lawrence
that there is a very material difference between suspending a jurisdic-
tion hitherto exercised, and foi hearing to introduce a jurisdiction hitherto
unknown; and that, while the United States offer to forbear from as-
suming a jurisdiction which they have never exercised, they are de-
manding that Great Britain should lay down a jurisdiction which she
has ever maintained ; and it may be proper here to notice the erroneous
opinion to which his Majesty's Government, in common with the Govern-
ment of the United States, are disposed to ascribe the recent attempts
of the State of Maine to intioduce its authority along the frontier in
question, viz : that forbearance on the side of the United States might
he construed into an admisEion of the light of Great Britain to the pos-
session of the frontier which she claims. Such apprehensions are with-
out foundation. No such infeience could fairly be drawn from such
forbearance. But were it otherwise, how much more would the posi-
tion of Great Britain be prejudiced by her relinquishment of a jurisdic-
tion hitherto invariably maintained?

The extent of obligation which, in the opinion of his Majesty's Gov-
ernment, is imposed upon both patties by the treaty of Ghent, with re-
gard to this territory, is, that the question of title shall remain precisely
in the same state in which it stood at the date of that treaty; and that
neither party shall do any act within its limits, by which the claim of
the other, as it then stood, may be prejudiced, or by which the country
may be rendered less valuable to that State to which the possession of
it may be ultimately awarded.

It is with this view that the Provincial Government of New Bruns-
wick have, with the approbation of the British Government, discontinued
from issuing licenses for cutting wood within the district, and have ab-
stained from all other acts not absolutely necessary for t^.e peaceable
government of the country ; and the undersigned is happy to have this
opportunity of acknowledging the existence of a corresponding dispo-
sition on ttie part of the General Government of the United States.

The United States further propose, that, until the arbitrator sliall have
given his decision, neither Power shall exercise any jurisdiction in the



OOl



[ House Doc. No. 90. 1



toiiitorv. His Majesty's Government are persuaded that the Goveril
inent of jlie United States will, on lurther consideration, sec the niani
loUl and seiioiis injuries wliich wouhl result to both Powers I'rom th«
j-iropoi^ed ariangemont. It would make the districts along the iVontie
a common refuge for the outcasts of both nations, and introduce anionf
the present inhabitants, wiio have long lived happily under the jurisdic
tion of Cireat Britain, lawless habits, from which it would hereafter b(
extiemely dithcult to reclaim them. It would thus render those districtsi
ol less value to the State to which they may be ultimately assigned
while, by the pernicious contact and examj)le of a vitiated population
it would materially endanger tlie tranquillity and good government ot
the adjoining dominions of his Majesty and of the United States.

In declining, however, to accede to this proposition of the United
States, the undersigned fulfds with pleasure the commands of his sove
reign, in disclaiming, at tiie same time, in tiie most unequivocal manner,
all intention of inlluencing the decision of the arbitrator by any argu
ment ibunded upon the continued exercise of this jurisdiction since the
peiiod at which the right was first questioned by the United States.

The undersigned will conclude by observing, that, as no practical in-
convenience has been alleged by Mr. Lawrence to exist, and as his Ma-
jesty has renounced any advantage which might be derived in the dis-
cussion from the continued exercise of jurisdiction during the period of
arbitration, the British Government conceive that, under all the cir-
cumstances, it would clearly be more just, as well as more to the advan-
tage of both countries, to allow the whole question to remain upon the
footing on which it has hitherto stood, until its final settlement by the
award of the arbitrator.

'J he undersigned lequests Mr. Lawrence to accept the assurances of
his high consideration.

ABERDEEN.

William B. Lawrexce, Esq., &c.



Mr. Lawrence to Lord Abcideen.
IG, Lower Seymour street, August 22, 1828.

The undersigned, charge d'alTaires of the United States of America,
had the honor to receive, on the 14th instant, the note which the Earl
of Aberdeen, his Majesly'5 Principal Secretary of State for Foreign Af-
fairs, addressed to him, in reply to an otlicial communication made by
the undersigtied, on the Jth of May, to the then Principal Secretary of
Slate for Foreign Allairs, respecting certain acts of the authorities of
New Brunswick, deemed by the Government of the United States in-
fractions on their rights of territorial sovereignty.

The two specific demands which, in consequence of the occurrences
in (pjestioii, the undei signed, by the President's orders, presented to the
(lonsideiation of his Majesty's (iovernment, are severally discussed by
Lord Aberdeen.

On tin; subject of the first of them, viz : " the liberation of Mr. Baker,
and the granting to him of a lull indemnity for the wrongs which he has



[ Ilouse Doc. No. 90. ] 837

suffered," the undersigned does not deem it expedient, under existing
circumstances, to add anything to the representations heretofore urged.
The grounds on wliich this demand was made are helieved to have been
efficiently set forth in his former note, and it woukl not be proper for
lim to comment on the British counter statement, without being acquaint-
ed with the President's views respecting certain proceedings in New
Brunswick, officially communicated by Lord Aberdeen, and which have
occurred subsequently to the date of the instructions under which he is
acting.

Having tluis assigned the reason for his silence, which is applicable
as well to the inferences which have been deduced from " the trial of
John Baker" as to the transaction itself, it can hardly be necessary to
remind Lord Aberdeen that, if the view which the United States take of
their rights of territorial sovereignty be correct, all the proceedings re-
ferred to must be admitted to have been before a tribunal wholly without
jurisdiction. This topic will not, however, be further enlarged' on, as it
is presumed that it is not proposed to conclude, by the sentence of a mu-
nicipal court, the rights of a foreign Power ; and that no greater force is
attached to the statements alluded to by Lord Aberdeen, as having been
given in the course of the trial, than would be attributed to any other
declarations made under the solemnity of an oath.

How far the United States may regard it as an aggravation of their
original complaint, that the prosecution in New Brunswick was proceed-
ed with during the pendency of a diplomatic discussion on the right to
arrest Mr. Baker, and that he was brought to trial more than two months
after a formal demand for his release had been made by the American
Government to the British minister residing at Washington, must rest
with the President to decide.

On the reply of the Earl of Aberdeen to the second demand of the
United States, viz : " that New Brunswick should cease from the exer-
cise of all and every act of exclusive jurisdiction within the disputed ter-
ritory, until the question of right is settled between the two Govern-
ments of the United States and Great Britain," it is the duty of the un-
dersigned to offer a few considerations, which he conceives are calculated
materially to affect the grounds on which the application of his Govern-
ment has been resisted. He is particularly induced to submit these
remarks at this time, from the circumstance that, as they embrace the
substance of observations which he had the honor to make to Lord
Aberdeen in conference, they will come with more propriety from him
than from the distinguished citizen to whom the interests of the United
States, at this important Court, are about to be confided, who, however
superior his advantages in other respects, must necessarily be unac-
quainted with what may have passed in personal interviews, between his
predecessors in office and his Majesty's ministers.

The second demand of the LTnited States is considered in connexion
with the remark incidentally introduced in the former note of the under-
signed, " that New Brunswick can adduce no claims by which a jurisdic-
tion, derived from prescription or first occupancy of the country, can be
sustained."

Without repeating here what has been said on a former occasion re-
specting the inapplicability of a title founded on possession, even could
I 23



538 [ Honsc Doc. No. 90. ]

such a one be established, to the question in controversy, the undersigned
will proceed brielly to examine the grounds on which the allegation
taken IrtJiu his note is attempted to be controverted. The three reasons
on which the disi;ent oi' his Majesty's Secretary of State is founded will
be e.xaniined in the order in which they are presented.

The first of them is, " that, before the independence of the United
Stiites, not only the territory in dispute, but the whole of the adjoining
Province and State, was the property of a common sovereign." To the
truth of this statement, which is indeed expressed in the words of the
unders-igned, no exception is tidien ; but, as the inference which Lord
Aberdeen would draw from it is not explained, he may be permitted to
remark that it is not perceived how this historical fact contributes more
towards establishing a title in JNew Brunswick than in the State of Maine.
To use the words of a celebrated authority, " when a nation takes
possession of a distant country, and settles a colony there, that country,
though separated from the principal establishment or mother country,
naturally becomes a part of the State, equally with its ancient possessions."
From the principle here established, that the political condition of the
people of the mother countiy and of their colonies, during this union, is
the same, the inference is unavoidable that, when a division of the em-
pire takes place, the previous rights of the common sovereign, on matters
equally aflfecting both of the States, accrue as well to the one as to the
other of them.

From the possession of the disputed territory by his Britannic Majesty,
anterior to H 76, a title by prescription or first occupancy might, therefore,
with the same propriety, be asserted for Massachusetts, of which the
present State of Maine was then a component part, as for Nova Scotia,
ihrouf^h which latter Province the pretensions of New Brunswick are
deduced.

On the second point, the undersigned conceives it proper to state that
he cannot admit "that the United States rest their claim to the posses-
sion of the territory upon the treaty of 1783," in any other sense than
that in which his Britannic Majesty founds, on the same treaty, his
claims to New Brunswick. By the instrument in question, which, be-
sides being a treaty of peace, was one of partition and boundaries, the
title of the United States was strengthened and confirmed, but it was
not created. It had existed from the settlement of the country. Where
this treaty is applicable, it, equally with all other conventional agree-
ments between nations, is of paramount authority, and many of its pro-
visions are, from their nature, of a permanent character; but its conclu-
sion, though it created new claims to territory, did not destroy any prior
right of the people of the United States that was not expressly renounced
by it.

The title to the district in controversy, as well as to all the territory
embraced in the original States, is founded, independently of treaty, on
the rights which belonged to that portion of his Britannic Majesty's sub-
jects who settled in his ancient colonies, now embraced in the American
Union, and upon the sovereignty maintained by the United States, in their
national character, since 4th July, 177G.

To the general rights of colonists, under the law of nations, allusion
heis already been made. To the particular situation of the inhabitants



[ House Doc. No. 90. ] 339

of the country now comprised in the United States, it is therefore not
necessary further to refer than merely to recall to the recollection of
Lord Aberdeen that they were not a conquered people, but subjects of
the King of Great Britain, enjoying the same rights with Knglishnien ;
and, although they acknowledged the authoiity o( a common sovereign,
the right of the Parliament of the mother country, in wiiich they were
unrepresented, to interfere in their internal concerns was never ac-
quiesced in.

F\om the declaration of independence, in 1776, the claims of the United
States, in their navional character, to all the territory within the limits
of the former thirleen colonies, are dated. Of the fact of their being in
possession of sovereignty, comprising, of course, the rights of territorial
jurisdiction, no further proof can be required than that they exercised all
its highest prerogatives. Nor were these confined to the limits of their
own country. Treaties of amity and commerce, and of alliance, were
made with France as early as 1778, and similar arrangements were en-
tered into by the United States with other foreign Powers, before any
settlement of boundary was attempted to be defined by convention be-
tween the American States and the adjacent Provinces.

The terms, as well of the provisional articles of 1782, as of the defini-
tive treaty of the succeeding year, may be cited in confirmation of the
view here taken. By the first article of both these instruments, " his
Britannic Majesty acknowledges the said United States, viz : New
Hampshire, Massachusetts Baj , &c., &c., &c., to be (vee^ sovereign, and
independent States; that he treats with them as such ; and for himself,
his heirs, and successors, relinquishes all claims to the government, pro-
priety, and territorial rights of the same, and every part thereof."

This language is suflficiently different from that employed, where it is
intended to convey territory by a grant in a treaty, to forbid the applica-
tion of the rules in the cases of cession to the renunciation of his claims
made by his Britannic Majesty.

If, by tracing the limits in the treaty, by which the boundaries of the
United States were attempted to be defined, England ceded to them the
territory on the one side of the line, the possessions of Great Britain on
the other side must be considered as held under a cession from the United
States. On these Provinces, indeed, the independent States of America
had more or less pretensions at different times during the war ; and they
were also entitled to prefer claims to a portion of them, founded on their
being an acquisition from France at the time they formed an integral
part of the empire.

There is, however, nothing in a treaty of partition or boundaries that
conflicts with the idea of a perfect equality between the contracting par-
ties. For the purpose of preventing all future disputes, the avowed ob-
ject of the 2d article of the treaty of 1783, such conventions are frequently
entered into between two nations of the same antiquity.

As it is believed that the exposition which has been given is sufTicient
to show that the character of the right which the United States are enti-
tled to advance, under the treaty of 1783, does not imply any " admissioa
of the previous title of Great Britain to the territory in question," con-
sidered distinct from that of Massachusetts, the undersigned will now
proceed to examine the allegation made in the third place by Lord Aber-



340 [ House Doc. No. 90. ]

deen, " that no actual delivery of the territory into the possession of the
United States has hitherto taken place, ^' and the further assertion that,
since the treaty of 1783, until the recent attempts of the State of Maine,
the rii^hts of sovereignty have been exclusively exercised by Great
Britain.

It may be here proper to remark that the delivery necessary to effect
a transfer of possession is necessarily dependent as well upon the cir-
cumstances under which property is held, as upon the nature of that
property itself.

With respect to a town or fortress, the delivery is made by certain
distinct, sensible acts. This is important in an established communit}',
in order to prevent the inconvenience which would result from doubts
arising as to the period when a transfer of authority took place, and a



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 44 of 56)