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new set of duties and obligations commenced. The same motives do
not, however, exist with regard to an uncultivated wilderness; and with
no propriety can the rules which govern in the one case be applied to
the other.

Without insisting in this part of the argument, that, from the posses-
sion of the " common sovereign," independent of that of the provincial
authorities, anterior to the Revolution, no title in favor of New Bruns-
^\'u^k could be derived, which would not equally accrue to Maine, it is
sufficient to observe that it is admitted on all sides that the first settle-
ments were formed within the last forty years, and that, consequently,
the possession, at the conclusion of the treaty of 1783, to whichever
party it legally belonged, was only a constructive one. If the preceding
views are correct, the constructive possession in question was in the
United Staies long before the date of the treaty ; and no further acts
Avere or could have been required to complete any title that might then
have been confirmed to the American Union. But had any ceremonies
been necessary, assuredly the solemn one of making the treaty would
have been suflicient ; and looking to the fact that tiie district was then
wholly uninhabited, it is diflBcult to conjecture what other formal sur-
render- could have been conveniently devised.

It is also to be noticed, in discussing this point, that the treaty of 1783,
■svhich is long prior in date to the present federal constitution, was not
made with the National Government exclusively, but, as appears by the
article already cited, the States were recognised by it as distinct, inde-
j)eiifierit communities. When it is borne in mind that they arc all enu-
merated by their ancient colonial names, and that '^ the northwest angle
of NoAa Siolia" is also introduced as oiie of the points of the boundary,
it is, without othei corroborating considerations, sufficiently obvious tkat
the lormci boundaries between Massachusetts and Nova Scotia were in-
tended to be retained. Under these circumstances, it is not immaterial
that Nova Scotia ( including, of course, the teriitory in dispute, if it be-
longs to ihat I'roviiice,) was, by a charter of William and Mary, incor-
porated in the colony of Massachusetts Bay. By what other mode of
iiansfci, it may be asked, than that adopted in the case of the United
States, was that ancient possession of Massachusetts divested, either in
favor of the sef)arale Provincial Government afterwards established
there, or of the French, to whom it was restored in 1G97 f If no actual
dcli\eiy ol the uncultivated lands was made on these occasions, accord-



I House Doc. No. 90. J 341

ing to the reasoning of Lord -Aberdeen, the former constructive posses-
sion of Massachusetts remains at this day in full force.

Conceiving that sufficient has been said to prove that the Americans,
supposing them to have a claim of right, either had the constructive pos-
session at the period of the ratification of the treaty of 1783, or that every
transfer was made of which the subject-matter is susceptible, it only re-
mains, on this head, to speak of the possession subsequent to the peace
of 1783.

From the nature of things, a title founded on " immemorial prescrip-
tion" cannot exist among the descendants of Europeans established ia
America ; but as it is implied, even in a title by " ordinary prescrip-
tion," that " the proprietor cannot allege an invincible ignorance ; that
he cannot justify his silence by lawful and solid reasons ; and that he has
jieglected his right, or kept silence during a considerable number of
years," it would seem that, while the officers of the two Governments
were actually employed in ascertaining the boundary, no new prescrip-
tive title could accrue.

Without, therefore, noticing any establishment founded during the pe-
riod that the business of surveying and marking out the boundary line
was in actual progress, it may be well to consider, for a moment, the
character of the settlement through which the British claim of possession
is derived.

The first inhabitants near the Madawaska river were, as was formerly
stated, French Acadians, or, in the words of Lord Aberdeen, " descend-
ants of the original French colonists of New Brunswick;" but as this
people had, from the period of their subjugation by the joint arms of Eng-
land and America, to the formation of their settlement, uniformly resisted
the authority of their conquerors, it is not apparent how they are to be
considered " British subjects." The claim which either Maine or New
Brunswick has on their obedience is only one founded on local alle-
giance ; and the existence of this right cannot be established in behalf
of either party, except by an assumption of the point in controversy. It
can, therefore, hardly be seriously contended that such a settlement, aid-
ed by the recent attempts of New Brunswick to introduce its authority
by enrolling the militia, and serving process along the frontier, affords
evidence of a possession as against claimants under a title confirmed by
treaty, not only of the land actually occupied by the individuals in ques-
tion, but of an extent of country embracing several millions of acres.

The undersigned has already disavowed for his Government any knowl-
edge of, much less acquiescence in, these irregular intrusions on the soil ;
and, to avoid repetition, he also refers to his former note for an enumera-
tion of the acts of sovereignty exercised by the American Governments.

The objections offered to his allegation, " that New Brunswick can
adduce no claims by which a jurisdiction derived from prescription, or
first occupancy of the country, can be established," have now been met;
and in maintaining a position, from the attempt to controvert which Lord
Aberdeen has drawn important inferences, the undersigned has treated,
somewhat at length, a topic which, in his previous communication, was
only incidentally noticed. He then conceived that it would prevent pro-
tracted discussion, and perhaps render unnecessary the introduction of
principles on which there was danger that the two Governments might



342 [ House Doc. No. 90. ]

not agree, to begin the deductions of the rights of the Powers from the
treaty of partition, by whicli a separation of tlieir dominions was efi'ected.

'J'his method seemed also the most expedient, as, so far as the treaty
■was a|)phcable, it, from its nature, precluded all reference to pre-existing
titles, ^^hich became merged in it; and it was believed that the ground
•which it occupied covered the whole matter in controversy. The under-
signed felt that he might then, without entering at all into the facts re-
specting the settlement of the country, have contented himself with the
remark, that, "considering the grounds on which the claims of the United
States are founded, it is not perceived how arguments, drawn either
from first occupancy or immemorial possession, can be made to bear on
the principal subject in discussion between the two countries, or how
they can atfect the question of temporary jurisdiction."

Tbe course of reasoning, however, which Lord Aberdeen has adopted,
does not now leave the undersigned at liberty to omit the preceding ex-
position ; and he trusts that he has shown that there is no room for the
application of tbe rule of law cited by tbe British Secretary of State, viz :
" that where a doubt exists, the party who has once clearly had a right,
and who has retained actual possession, shall continue to hold it until the
question at issue may be decided."

It is a sufficient reply to the inference deduced from the silence of the
treaty of Ghent, and of previous treaties, as to the exercise of jurisdiction
by (/reat Britain, that it is evident, from the proceedings on the occasion
particularly mentioned, that the impression was entertained " that the
greater part of the territory in question was then unoccupied ;" nor does
it appear that the French settlement, on which the British possession is
now supported, was at that time known to the plenipotentiaties of either
Power.

The undersigned learns, with regret, that the United States must con-
sider themselves mistaken in the opinion which they had formed of the
rule of forbearance inculcated on both sides. They had supposed that
by it the parties stood pledged to each other to abstain from the perform-
ance of any new acts which might be construed into an exercise of the
rights of sovereignty or soil over the disputed territory. As explained
by Lord Aberdeen, the mutual restriction would apply exclusively to the
exercise of the presumed rigbts of the respective parties as proprietors
of the soil, not to their pretensions as sovereigns of the territory.

It is dilficult to reconcile with the idea now conveyed the assurance,
given eafly in the last year by the British minister at Washington, that
"the Lieutenant Governor of New Brunswick cautiously abstains, on his
part, from exercising any authority in the disputed territory, which could
invite an encioachinent as a measure of retaliation." And presuming
that no more was intended to be asked from tlie American (Government
tbati bis Majesty's autlioiilies were pre])ared to grant in return, the un-
dersigned cannot understand on what principle, consistent with the rule
now contended for, complaints were urged by Mr. Vaughan respecting
the laying out of land into townships, and marking out roads, by the
agents of Maine and Massachusetts. J lad the im|)rcssion ol the Govern-
ment of the United Stat(!S been the sanie witb that of bis Majesty's Gov-
ernment, as now explained, it is not probable that the disparity in num-
bers between tbe American cili/ens and French Acadians in the disputed



[ House Doc. No. 90. ] 343

tenilory, relied on by Lord Aberdeen as a material fact, would have at
tliis time existed.

But, as the conclusion of Lord Aberdeen on the demand of the Ameri-
can Government is founded on the opinion "that the circumstances of
the two coimtries are extremely diHcrent," and as it is believed that this
supposition has been proved to be erroneous, the undersip^ned still flatters
hinir^elf that, on a fuller examination, all objection will cease to a ])roposi-
tion which has for its motive the prevention of dangerous collisions be-
tween neighboring and friendly Powers, and that his Majesty's Govern-
ment will admit the propriety of abstaining from a jurisdiction, the exer-
cise of which, if persevered in, may lead to consequences for which the
undersigned is instructed to declare that the Government of the United
States cannot hold themselves responsible.

The undersigned takes the liberty of observing that, great as may be
the inconveniencesof an absence of exclusive jurisdiction on the frontiers,
they have not been, on other occasions deemed, either by the United
States or Great Britain, of sufficient magnitude to induce sacrifices of ter-
ritorial claims, as is abundantly evinced by conventions entered into by
them respecting othei- territory.

He would also adduce a fact that has fallen within the scope of his of-
ficial knowledge, which shows that the opinion of the President was, at
no very remote period, participated in by one of Lord Aberdeen's prede-
cessors in oiSce,at the time referred to at the head of his Majesty's Gov-
ernment. Mr. Gallatin, in a despatch to the Secretary of State o f the
United States, dated in July, 1827, after speaking of a conference with
the First Lord of the Treasury respecting the northeastern boundary, ob-
serves that " Mr. Canning also suggested the propriety of abstaining on
both sides, pending the suit, from any act of sovereignty over the con-
tested territory."

That such a stipulation was not introduced into the late arbitration con-
vention is probably to be attributed to the supposed adequacy of the ex-
isting understanding between the parties, and to the fact that no collisions
of importance, not disavowed, had then occurred.

Considering the protracted discussion on the case of Mr. Baker, and
the several other grievances alluded to in tlie note of the 5th May, or
brought into view by the correspondence at Washington, the undersigned
cannot account for the conclusion to which Lord Aberdeen has arrived,
"that no practical inconvenience has been alleged by Mr. Lawrence to
exist." He would observe, on the remark which Lord Aberdeen founds
on this allegation, that, if British jurisdiction has been heretofore occa-
sionally exercised in cases prejudicial to the rights of the United States,
their omitting to notice these occurrences in a remote section of their do-
minions, and of which they were ignorant, is wholly different from their
acquiescing in a transaction where their authority, appealed to by an
American citizen, has been openly set at defiance.

The undersigned doubts not that the Government of the United States
will do full justice to the spirit in which Lord Aberdeen disclaims, by
command of his sovereign, all intention of influencing the decision of the
arbitrator by any exercise of jurisdiction over the disputed territory ; and
he takes this opportunity to remark that it has not been his intention,
either on the present or other occasions, by any designations which he
may, for convenience, or for the purpose of expressing the conviction of



314 [" House Doc. Xo. 90. ]

bis Government on that subject, have given to the district, to assume as
uncontroverted any of the points in dispute. He is fully aware that, in
the face of a solemn instrument, to which his country is a party, setting
forth that dilferences as to the settlement of the boundary in question
do exist, and agreeing to refer them to the decision of a friendly sov-
ereii^n or State, such an attempt, if made, would be worse than useless.

He has, moreover, endeavored, as far as practicable, to abstain from
any investigation of the question of right — the true province of the arbi-
ter. He can now only add his regret that there is not the same accord-
ance of views between their respective Governments on the subject to
which this note relates, as was on a recent occasion happily found to exist
on a more important business, allecting the same territory, which the un-
dersigned had the satisl'action to arrange with Lord Aberdeen.

The undersigned renews to Lord Aberdeen the assurances of his high-
est consideration.

W. B. LAWRENCE.
The Rt. Hon. the Earl of Aberdeen, &c.



Governor Enoch Lincoln to Mr. Clay.
State of Maine, Executive Department,

Portland, October 23, 1828.

Sir : I have received the enclosed document relative to the situation
of Mr. Baker, the American citizen confined in the prison of New Bruns-
wick, to whose situation the attention of the President has been paid in
the spirit which commands the most respectful acknowledgment.

V'ou have seen the aggravated character of Mr. Baker's conviction, and
will perceive the unfortunate efiect of his detention, from the necessary
induence on his health, his property, his happiness, and that of his family,
by the serious disaster in which he is involved. He remains a prisoner
under the domination of that Government of which the President, long
since, demanded his release, with indemnity. Through him, too, ail his
fellow-citizens are suffering injury ; may 1 not add, doing wrong, by too
patient an endurance of his o})piession.

His family is numerous and respectable, and reduced to want by the
absence of a husband and parent's care. His property was growing by
his industry and economy, but is falling fast to ruin; and he is a solitary
American in a foreign jail. In his conduct he has exhibited the utmost
discreetness ; and while, with the firmness of a freeman, and the dignity
of a patriot, he has denied the jurisdiction of New Brunswick over his
person and property, he has submitted with patience to the power which
it belonged only to Maine and his country to resist. If he shall perse-
vere, he will deserve to be called truly great ; but it is principally my
obj(;ct to solicit information whether he cannot be relieved consistently
with the objects the General Government may be pursuing, so that he
shall not be made absolutely the victim of tyranny and cupidity. Unwil-
ling, after the very acceptable interposition of the President, to adopt any
measure which may not accord with his wishes, and relying on the ener-
gy with which it is believed every right guarantied by all our constitu-
tions will be protected, no measure in regard to Mr. Baker has been
adopted, excepting the one I will mention. Finding that Mr. Baker's
family are in distress in reference to the means of support, the Council of



[ House Doc. No. 00. j 345

this State has unanimously advised the advance of two hundred and
twelve dollars for their relief, which has been drawn for that purpose
from the treasury. It is deemed that this will be considered as an al-
lowance made on account of the United States, and that, to use a mercan-
tile expression, it will be honored accordingly. In short, it may safely
be said that the confidence inspired by the demand made in this case by
the Chief Magistrate of the Union is continued as to all the objects to be
insisted upon for the redress of the wrong we have suffered.

As Mr. Deane has been requested to take charge of this concern, per-
sonally, at the place of the residence of Mr. Baker's family, and is, also,
in the employ of the United States, under the direction of Mr. Preble,
it may be of some advantage if you shall honor me with a reply, if it shall
be received, as soon as your convenience will permit.
I have the honor to be, &c.

ENOCH LINCOLN.

Hon. Henry Clay, &c.



Portland, October 13, 1828.

Sir : I am authorized by John Baker to apply for the relief provided
by the Legislature on behalf of his family.

As the Government of the United States has recognised his rights, as
a citizen thereof, to the restoration of his liberty, and an indemnity for
what he has suffered, it may be proper to make this application with a
due saving of the claims that have been thus asserted in his favor.

Mr. Baker desires that a representation may be made of the painful
situation in which he has been placed for a year past. He expresses a
suitable sense of what has been done for his benefit, while he is made to
feel that its only effect has been to give a more determined character and
continuance to his confinement.

Mr. Baker, therefore, solicits that such measures moy be taken as may
serve to procure his release. Although it becomes his duty to wait his
deliverance, he deems his liberty of too great value to be sold for gain.

Besides, that he has been impoverished by the repeated seizures of his
property, and the circumstances of his long imprisonment, by the Govern-
ment of New Brunswick, his family is in distress for the means of sup-
port, and without sufficient shelter against the approaching winter, as the
house which he was erecting, when he was taken from them, was unfin-
ished. He is also obliged to pay for his own maintenance in prison.

I have, accordingly, to request such aid and advice as the condition
and circumstances of Mr. Baker and his family may require, and the Gov-
ernment of ihe Stale may see fit to extend.

I am, most respectfully, your excellency's obedient servant,

C. S. DAVEIS.

To Governor Lincoln, Maine.



Mr. Clay to Governor Enoch Lincoln.

Department or State,

Washington, J\})vember 6, 1823.
Sir: I have the honor to acknowledge the receipt of your excellency's
letter under date the 23d ultimo, transmitting a copy of a letter addressed



346 [ House Doc. No. 62. ]

to you by C. S. Davies relative to the case of tlie unfortunate J(»hn Ba-
ker. The I'residenf, participating with you in the sympatliy felt on ac-
count of his condition, regrets that the eflorts whicli have been made to ob-
tain his liberation, and indemnity for tiic wi'ongs which he has suffered,
liave been hitherto unavailing. Your excellency states that the Council
of the S'rtte of Maine has advised the advance to Mr. Baker of $212, for
liis present relief; which is considered to be a proper charge against the
Federal Government. I am authorized by t!ie President to say that the
State of Maine shall be reimbursed the sum thus advanced. Your excel-
lency's diiift for that amount upon this Department will be duly honored,
whenever ])reseuted.

1 have the honor to be, with great respect, your excellency's obedient
servant. H. CLAY.

His Excellency Enoch Lincoln, Governor of Maine.



[House Doc. No. 62— 23d Congress, 2d session.]

Message from the President of the United States, transmitting information
in relation to the establislimeHt and settlement of the northeastern bound-
ary of the United States.

Washington, January 6, 1835.

To the House of Representatives of the United States :

In answer to a resolution of the House of Representatives, passed on the
27th ultimo, ( transmit a rejmrt made to me by the Secretary of State on
the subject ; and I have to ac(piaint the House that the negotiation for the
settlement of the northeastern boundary being now in progress, it would,
in my opinion, be incompatible with the public interest to lay before the
House any communications which have been had between the two Govern-
ments since the period alluded to in the resolution.

ANDREW JACKSON.



Department of State,

If'ashington, January 5, 1835.

To the President of the United States :

The Secretary of State, to wliom was inferred a resolution of tlr House
of Re|)resentatives of the 27th ultimo, requesting the President *' to lay
before the House (if, in his opitiion, it is not incompatible with the public
interest) any communications which may have been had between the Gov.
eminent of tlie United States and that of Great Britain, since the rejection,
by the former, of the advisory o|)iriion of the King of the Netherlands in
reference to the establislimcnt and final settlement of the northeastern
boundary f)f the United States, heretofore in controversy between the two
Governments ;" and also r»'t|iM'sting the President »Mo communicale any
information he may possess of the exercise of practical jurisdiction, by the
authorities of the IJritish Province of New Brunswick, over the dis|)uted
territory witlTm the limits of the Stale of Maine, according to the true line
of boundary, as claimed l)y the United States, and especially upon that part
of the territory which has been incor|iorated by the Government of Maine
into the town of Madawaska j together with such representations and cor-



t House Doc. No. 62. ] 347

respondcnce (if any) as have been had by the Executive of that State with
the Government of the United States on the subject" — has the honor to
report tliat tije Dejjartment has no information, which has not ali-eady
been laid before the House, of the exercise of ])ractical Jui'isdiction, by the
authorities of the British Province of New liiunswick, over the disputed
territory within the limits of the State of Maine, nor any other representa-
tion or correspondence had by the Executive of tliat State witli the Govern-
ment of the United States on that subject. Representations were made to
this Department in tlie latter partof the year 183^% by the British minister
at Washington), on the part of the authorities of New Brunswick, complain-
ing of infractions of the understanding subsisting between the two Govern-
ments in regard to the disputed territory. I'hese complaints, however,
on being refeired to the Governors of Maine and Massachusetts, for ex-
planation, were believed to be without just grounds: there was no complaint
on the partof Maine, and the correspondence which took place on the occa-
sion is not supposed to be within the scope of the resolution of the House.

As the negotiation between tlie United States and Gieat Britain, which
was commenced, in accordance with a resolution of the Senate, after the
rejection of the advisory opinion of the King of the Netherlands, for tire
establishment of the northeastern boundary, is now in progress, it is sub-
mitted to the President whether it would be compatible with the public
interest to lay before the House any communications which have passed
between the two Governments on the subject.

All which is respectfully submitted. JOHN FORSYTH.



[House Doc. No. 125 — 24th Congress, 2d session.]

Message from the President of the United States, transmitting a copy
of a letter from the Governor of the State of Maine, claiming the
reimbursem,ent of certain moneys paid to John and Phineas R. Har-
ford out of the treasury of that State.



Online LibraryUnited States. Dept. of StateMaine boundary--Mr. Greely, &c. .. → online text (page 45 of 56)