designate those lands as territory belonging to the crown with which John Baker was charged, and of which he This, however, is not the point for present considera- tion proved against him on the trial were such as no was found guilty. The several acts of outrage and sedition. The question of sovereignty, which depends upon government actually exercising jurisdiction, and therethe definition of the true frontier line between the twofore responsible for the peace and security of the comcountries, under the treaty of 1783, having been referred, munity existing under its protection, could allow to pass agreeably to the provisions of the treaty of Ghent, to the unpunished, whether the perpetrators of offences happenthe arbitration of a friendly state, al jurisdiction alone which can now be discussed, without diction, and therefore owing local and temporary obediis a question of actu-ed to be its own subjects, or aliens settled within its jurisintefering with the province of the arbitrator; and be-ence to its laws. tween these questions of sovereignty and the actual exercise of jurisdiction, the undersigned conceives there is a broad and clear distinction. individual Baker himself, the undersigned has now to 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 ed by the evidence on Baker's trial, that the Madawaska It is shown by the report of Mr. Barrell, and confirmthe undersigned that the various and pressing calls upon settlement was formed soon after the treaty of 1783, by the attention of his majesty's government, at this season British subjects, descendants of the original French colof the year, have prevented him from returning an ear onists of New Brunswick. It is stated on oath by Simon lier answer to Mr. Lawrence's note, addressed to his Hibert, a witness on the trial, who has lived forty years predecessor, the regret is materially diminished by the in the settlement, and had received a grant of land from consideration that this delay has enabled the undersigned the provincial government two or three years after he to put Mr. Lawrence in possession of the proceedings on settled there, that he considered himself to have althe trial of John Baker, at Frederickton, in New Bruns-ways lived under the government of New Brunswick, wick, (a copy of which he has now the honor to enclose,) and that all the Madawaska settlers lived under the same which he feels persuaded will, in conjunction with the re-government. marks which he has to offer upon them, satisfy Mr. Mr. Fraser, a magistrate, who has been acquainted with Lawrence that the prosecution instituted against John the Madawaska settlers since 1787; and who further Testimony to the same effect is given by Baker by the government of New Brunswick, was rendered indispensably necessary by the acts of that individ-long series of years, voted at elections like other subjects proves that the settlers had, to his own knowledge, for a ual; that it has been conducted with a scrupulous regard of the province of New Brunswick; and finally, Mr. to justice; that the sentence which has been passed upon Barrell reports that the laws of New Brunswick aphim, is, under all the circumstance of the case, a lenient pear to have been always in force since the origin of the one; and that, in the whole course of these proceedings, settlement; and that the settlers have acquiesced in the no privelege which Baker could justly claim under the exercise of British authority among them, and have for law of nations, has been violated. many years had an organized militia." Postponing, for the present, any answer to Mr. Lawrence's remarks on the general question of jurisdiction is admitted by Mr. Barrell, that the lands on which BaIt is further proved, by the evidence on the trial, and within the district in which John Baker resided at the ker resided form part of the Madawaska settlement; and period of his arrest, and assuming, in this place, that the acts of Baker himself, and of his brother, who precesuch jurisdiction did belong to the government of Newded him, show that they consider the land possessed by Brunswick, the undersigned will procced to show, from them successively to be situate under the authority of the history of Baker himself, that the exercise of it, in the government of New Brunswick. the particular case of that individual, is singularly free from any possible imputation of hardship or severity. It is, moreover, not an immaterial fact, that the settleMr. Lawrence will see, from the report of Mr. Bar-by settlers from New Brunswick, was found by Mr. ment thus originally formed, upwards of forty years ago, rell, the agent specially appointed by the government of Barrell, at the period of his visit in November last, to the United States to inquire into this transaction. (which contain, out of a population of 2000 souls, not more than report has been officially communicated to his najesty's 25 American settlers. government, and is doubtless in Mr. Lawrence's possession, that John Baker, who had, from the year 1816, collected by the agent of the United States, corroboraThis exposition of the substance of the information until 1820, resided in the British provinces of New Bruns-ted as it is by the evidence on oath given before the suwick and Canada, came in the latter year, to reside in the preme court at Frederickton, together with the detailed Madawaska settlement, where he joined his brother narrative of the proceedings on the trial, will the underNathan, then carrying on trade in connexion with a Brit- signed trusts, satisfy Mr. Lawrence that the opinion ish merchant of the name of Nevers, established at the which he has expressed in his note, "that no part of the capital of New Brunswick; and that, after the death of tract in which Baker resided had ever been in the poshis brother, in 1821, John Baker continued to occupy the session of persons acknowledging allegiance to the Briland on which his brother had originally settled, and to tish government," is founded in error; and that full and carry on the same business as before, under the said substantial justice has been done to Mr. Baker. Nevers. It further appears, as well from Mr. Barrell's undersigned will therefore proceed to the second point statement, as from the evidence on Baker's trial, that to which he has proposed to advert, namely, Mr. LawThe Nathan Baker had, so long ago as the year 1819, form-rence's demand, "that the government of New Brunsally admitted the jurisdiction of the government of New wick should cease from the exercise of all and every act Brunswick over his said possession; that John Baker's of exclusive jurisdiction within the disputed territory." partner, Nevers, with Baker's concurrence, applied to the government of New Brunswick for a grant of the fore the undersigned Mr. Lawrence's assertion "that The consideration of this question naturally brings besame land, for the benefit of John Baker; that, in 1822, New Brunswick can adduce no claims by which a jurisBaker himself applied for and received from the govern-diction derived from proscription, or first occupancy of ment of New Brunswick the provincial bounty for the the country, can be sustained." cultivation of grain upon that land; and that, so late as the year 1825, he had voluntarially applied to the British authorities for the enforcement of the British laws among the American 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 Mr. Lawrence's own words) that "before the indepenFirst, to the fact (which the undersigned will state in uniformly been asserted and exercised by the govern-dence of the United States, not only the territory in dis ment of New Brunswick, and of which he had himself. pute, but the whole of the adjoining province and state in common with the other settlers, claimed the benefit was the property of a common sovereign. and protection. It must be wholly unnecessary for the undersigned to insist upon the serious nature of the offences themselves, sure anticipated in the course of the preceding observaThe reply to this allegation has been in a great meatious on the case of John Baker. But the undersigned desires to call the attention of Mr. Lawrence more distinctly to the following important facts: claim to the possession of the territory upon the treaty Secondly, to the fact that the United States rest their of 1783; by which treaty the independence of the United States was recognised by Great Britain, and their boun-ed to exercise within the limits of the territory in quesdaries attempted to be defined; thereby, in effect, admit- tion. The undersigned need hardly point out to Mr. ting the previous title of Great Britain to the territory in Lawrence that there is a very material difference between question. suspending a jurisdiction hitherto exercised and forbearAnd, in the third place, to the facts (which have eithering to introduce a jurisdiction hitherto unknown; and been proved upon oath, on Baker's trial, or adm tted by that, while the United States offer to forbear from asMr. Barrell, the agent of the United States) that no actual suming a jurisdiction which they have never exercised, delivery of the territory into the possession of the Un-they are demanding that Great Britain should lay down ted States has hitherto taken place; that from and im-a jurisdiction which she has ever maintained: and it may mediately after the conclusion of the treaty of 1783, be proper here to notice the erroneous opinion to which whatever rights of sovereignty have been exercised mhis majesty's government, in common with the governthat territory, have, until the recent attempts of the statement of the United States, are disposed to ascribe the of Maine, been exercised by Great Britain; that the first recent attempts of the state of Maine to introduce its settlers were colonial subjects of his majesty; that the authority along the frontier in question; viz; that forinhabitants have always hitherto been treated as British bearance on the side of the United States might constru subjects; that they have for many years voted at elec-ed into an admission of the right of Great Britain to the tions, like the other natives of the province; that they possession of the frontier which she claims. Such aphave long had an organized militia, and have considered prehensions are without foundation. No such inference themselves to be living under British protection and ju- could fairly be drawn from such forbearance. But were risdiction; and that, until a very recent period, the rig it otherwise, how much more would the position of Great of Great Britain to exercise acts of sovereignty within this Britain be prejudiced by her relinquishment of a jurisdicterritory has never been called in question by the gov- tion hitherto invariably maintained? ernment of the United States. Even in the representa- The extent of obligation which, in the opinion of his tion addressed by Mr. Clay to his majesty's charge d'af- majesty's government, is imposed upon both parties by faires at Washington, on the 27th of March, 1825, (which the treaty of Ghent, with regard to this territory, is, that contained the first objection of any kind advanced by the the question of title shall remain precisely in the same government of the United States to the proceedings of state in which it stood at the date of that treaty; and that the British in the district jointly claimed by the two gov-neither party shall do any act within its limits, by which ernments), 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 individuals, such as the cut-ultimately awarded. ting of wood, and other acts tending to render the district of less value to the party to whom it should finally be assigned. the claim of the other, as it then stood, may be prejudiced, or by which the country may be rendered less valuaable to that st: te to which the possession of it may be It is with this view that the provincial government of New Brunswick have, with the approbation of the British government, discontinued from issuing licences for cutIn the face of this accumulated evidence that Great tng wood within the district, and have abstained from all Britain has never yet been practically divested of her another acts not absolutely necessary for the peaceable gocient right of jurisdiction, it cannot reasonably be con- vernment of the country; and the undersigned is happy tended that the national character of the territory has unto have this opportunity of acknowledging the existence dergone any change since the period antecedent to the of a corresponding disposition on the part of the general treaty of 1783. It has, indeed, been formally admitted, government of the United States. both by Great Britain and the United States, that the The United States further propose, that, until the arright of eventual sovereignty over that district is a ques-bitrator shall have given his decision, neither power tion remaining in doubt; but it is consistent with an ac- shall exercise any jurisdiction in the territory. His maknowledged rule of law, that where such a doubt exists, jesty's government are persuaded that the government of the party who has once clearly had a right, and who has the United States will, on further consideration, see the retained actual possession, shall continue to hold it until manifold and serious injuries which would result to both the question at issue may be decided. This territory powers from the proposed arrangement. It would make therefore, ought, upon every principle, to be considered, the districts along the frontier a common refuge for the for the present at least, as subject to the authority and outcasts of both nations, and introduce among the prejurisdiction of Great Britain; unless treaties subsequent sent inhabitants, who have long lived happily under the to that of 1783. shall have imposed an obligation on her jurisdiction of Great Britain, lawless habits, from which to pursue a different line of conduct with respect to it it would hereafter be extremely difficult to reclaim them. None of the treaties, however, posterior to that of It would thus, render those districts of less value to the 1783 allude to the question of jurisdiction; and from state to which they may be ultimately assigned; while, their silence on this point, it may fairly be inferred that by the pernicious contact and example of a vitiated popu the United States, who cannot be supposed to have been a on, i ould materially endanger the tranquillity and ignorant of the acts of British authority which had been good government of the adjoining dominions of his maexercised throughout the territory in question, tor so jesty and of the United States. many years, did not entertain any doubt of the right In declining, however, to accede to this proposition of of Great Britain in that respect. For, if such had been the United States, the undersigned fulfils, with pleasure, the case, they would surely have stipulated for the in- the commands of his sove eign, in disclaiming, at the same troduction into the latter treaties, especially into that time, in the most unequivocal manner, all attention of of Ghent, of some provision respecting the exercise of influencing the decision of the arbiter by any argument that authority against which Mr. Lawrence is now in-founded upon the continued exercise of this jurisdiction structed to protest. since the period at which the right was first questioned by the United States. The undersigned cannot acquiesce in Mr. Lawrence's extension to this question of jurisdiction of that rule of The undersigned will conclude by observing, that, as forbearance which has been inculcated on both sides, no practical inconvenience has been alleged by M. Lawwith regard to the exercise of other acts of sovereignty, rence to exist, and as his majesty has renounced any adnot necessary for the due administration of the territory vantage which might be derived in the discussion from now under consideration. With respect to such juris-the continued exercise of jurisdiction during the period diction, the undersigned must be permitted to observe of arbitration, the British government conceive that, unthat the circumstances of the two countries are extreme-der all the circumstances, it would clearly be more just, ly different. The United States have never been in pos-as well as more to the advantage of both countries, to alsession of the territory; their title to it, under the treaty low the whole question to remain upon the footing on of 1783, is not admitted by Great Britain; and every act which it has hitherto stood, until its final settlement by of jurisdiction done by the United States is an assump- the award of the arbitrator. tion of an authority which they did not previously possess. On the other hand, Great Britain has never arted with possession; the jurisdiction which she now exercises s the same which belonged to her before the treaty of 3793, and which she has, ever since that period, continu The undersigned requests Mr. Lawrence to accept the assurances of his high consideration. ABERDEEN. William B Lawrence, esq. &c. &c. &c. THIRD SERIES. No. 15-VOL. XII.] BALTIMORE, MAY 23, 1829. [VOL. XXXVI. WHOLE NO. 923 THE PAST-THE PRESENT-FOR THE FUTURE. EDITED, PRINTED AND PUBLISHED BY H. NILES & SON, AT $5 PER ANNUM, PAYABLE IN ADVANCE. For miscellaneous articles see page 196. CASE OF JOHN BAKER, OF MAINE. (Concluded.) Mr. Lawrence to Lord Aberdeen. The right hon. the earl of Aberdeen, &c. &c. &c. The two specific demands, which, in consequence of the occurrences in question, the undersigned, by the president's orders, presented to the consideration of his majesty's government, are severally discussed by lord Aberdeen. On the subject of the first of them, viz: "the liberation of Mr. Baker, and the granting to him of a full indemnity for the wrongs which he has suffered," the undersigned does not deem it expedient, under existing circumstances, to add any thing to the representations heretofore urged. The grounds on which this demand was made, are believed to have been sufficiently set forth in his former note; and it would not be proper for him to comment on the British counter-statement without being acquainted 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 thus 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 views which the United States take of their rights of territorial sovereignty be correct, all the proceedings referred 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 municipal 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 proceeded 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. fided, who, however superior his advantages in other res pects, must necessarily be unacquainted with what may have passed in personal interview's between his predecessors in office and his majesty's ministers. The second demand of the United States is considered in connexion with the remark incidentally introduced in the former note of the undersigned, "that New Brunswick can adduce no claims by which the jurisdiction derived from prescription or first occupancy of the country can be sustained." Without repeating here what has been said on a form er occasion, respecting the inapplicability of a title founded on possession, even could such a one be established, to the question in controversy, the undersigned will proceed briefly to examine the grounds on which the allegation taken from his note is attempted to be controverted. The three reasons on which the dissent of his majesty's secretary of state is founded will be examined in the order in which they are presented. The first of them is 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." To the truth of this statement, which is indeed expressed in the words of the undersigned, no exception is taken; 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 New 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 pos sessions." From the principle here established, that the political condition of the people or the mother country, and of the colonies, during their union, is the same, the inference is unavoidable, that, when a division of the empire takes place, the previous rights of the common sovereign, on matters equally affecting 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 1776, 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, through which latter province the pretensions of New Brunswick are deduced. On the second point, the undersigned conceives it pro per to state that he cannot admit that the United States rest their claim to the possession 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, besides 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 agreements between nations, is of paramount authority, and many of its provisions are, from their nature, of a permanent character; but its conclusion, 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. On the reply of the earl of Aberdeen to the second demand of the United States, viz: "that New Brunswick should 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 the United States and Great Britain," it is the duty of the undersigned to offer a few considerations, which, he conceives, are calculated materially to affect the grounds on which the application of his government has been resisted. He is particularly induced to submit The title to the district in controversy, as well as to all these remarks at this time from the circumstance that, the territory embraced in the original states, is founded, inas they embrace the substance of observations which he dependently of treaty, on the rights which belonged to that had the honor to make to lord Aberdeen in conference, portion of his Britannic majesty's subjects who settled in they will come with more propriety from him then from ancient colonies, now embraced in the American union, the distinguished citizen to whom the interests of the and upon the sovereignty maintained by the United States United States at this important court are about to be con in their national character, since 4th July, 1776, VOL. XXXVI-No. 13. To the general rights of colonists under the law of to the period when the transfer of authority took place, nations, allusion has already been made. To the par-and a new set of duties and obligations commenced. ticular situation of the inhabitants of the country, nowThe same motives do not however exist with regard to comprised in the United States. it is therefore not ne-an uncultivated wilderness; and with no propriety can cessary further to refer than merely to recall to the re-the rules which govern in the one case be applied to the collection of lord Aberdeen that they were not a con- other. quered people, but subjects of the king of Great Britain, enjoying the same rights with Englishmen; and, although they acknowledged the authority of a common sovereign the right of the parliament of the mother country, in which they were unrepresented, to interfere in their internal concerns, was never acquiesced in. Without insisting in this part of the argument that, from the possession of the "common sovereign" independent of that of the provincial authorities, anterior to the revolution, no title in favor of New Brunswick could be derived, which would not equally accrue to Maine, it is sufficient to observe that it is admitted on From the Declaration of Independence in 1776, the all sides, that the first settlements were formed within claims of the United States, in their national character, the last forty years, and that consequently, by the posto all the territory within the limits of the former thirteen session, at the conclusion of the treaty of 1783, to whichcolonies, are dated. Of the fact of their being in pos-ever party it legally belonged, was only a construcsession of sovereignty, comprising, of course, the rights tive one. If the preceding views are correct, the conof territorial jurisdiction, no further proof can be requir-structive possession in question was in the United States ed, than that they exercised all its highest prerogatives. long before the date of the treaty, and no further acts Nor were these confined to the limits of their own coun- were or could have been required to complete any title ry. Treaties of amity and commerce, and of alliance, were that might then have been confirmed to the American made with France as early as 1778, and similiar arrange-union. But had any ceremonies been necessary, assured. ments were entered into by the United States with other ly the solemn one of making the treaty would have been foreign powers, before any settlement of boundary was sufficient; and looking to the fact that the district was attempted to be defined by convention between the Ame- then wholly uninhabited, it is difficult to conjecture what rican states and the adjacent provinces. other formal surrender could have been conveniently devised. The terms, as well of the provisional article of 1782, as of the definitive 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 Bay, &c. &c. &c. to be free, sovereign, and independent states: that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof." It is also to be noticed in discussing this point, that treaty of 1783, which 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 recognized by it as dis tinet, independent communities. When it is borne in mind that they are all enumerated by their ancient colonial names, and that "the northwest angle of Nova Scor tia" is also introduced as one of the points of the bound. ary, it is, without other corroborating considerations, This language is sufficiently different from that employ-sufficiently obvious that the former boundaries between ed where it is intended to convey territory by a grant Massachusetts and Nova Scotia were intended to be res in a treaty, to forbid the application of the rules in the tained. Under these circumstances, it is not immaterial cases of cession to the renunciation of his claims made by that Nova Scotia (including, of course, the territory in his Britannic majesty. dispute, if it belongs to that province), was, by a charter of William and Mary, incorporated in the colony of Massachusetts bay. By what other mode of transfer, it may be asked, than that adopted in the case of the U. States, was that ancient possession of Massachusetts di vested, either in favor of the separate provincial go vernment afterwards established there, or of the French to whom it was restored in 1697? If no actual delivery of the uncultivated lands was made on these occasions, according to the reasoning of lord Aberdeen, the former constructive possession of Massachusetts remain at this day in full force. 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 parties. For the purpose of preventing all future disputes, the avowed object of the 24 article of the treaty of 1783, such conventions are frequently entered into between two nations of the same antiquity. Conceiving that sufficient has been said to prove that the Americans, supposing them to have a claim of right, either had the constructive possession 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 remains, on this head, to speak of the possession subsequent to the peace of 1783. As it is believed that the exposition which has been From the nature of things, a title founded on "immemgiven is sufficient to show that the character of the right orial prescription" cannot exist among the descendants which the United States are entitled to advance under of Europeans established in America; but as it is implied the treaty of 1783, does not imply any "admission of the even in a title by "ordinary prescription," that “the proprevious title of Great Britain to the territory in ques-prietor cannot alledge an invincible ignorance; that he cantion," considered distinct from that of Massachusetts, not justify his silence by lawful and solid reasons; and the undersigned will now proceed to examine the alle that he has neglected his right, or keep silence during a gation made in the third place by lord Aberdeen, "that considerable number of years," it would seem that while no actual delivery of the territory into the possession of the officers of the two governments were actually emthe United States has hitherto taken place," and the fur-ployed in ascertaining the boundary, no new prescriptive ther assertion, that, since the treaty of 1785, until the title could accrue. recent attempts of the state of Maine, the rights of so- Without, therefore, noticing any establishment foundvereignty have been exclusively exercised by Great Bri-ed during the period that the business of surveying and ain. It may be here proper to remark that the delivery necessary to effect a transfer of possession is necessarily dependent, as well upon the circumstances under which property is held, as upon the nature of that property tself. 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 werę, as was formally stated, French Acadians, or, in the words With respect to a lown or fortress, the delivery is of lord Aberdeen, "descendants of the original French made by certain distinct sensible acts. This is important colonists of New Brunswick;" but as this people had; from in an established community, in order to prevent the in-the period of their subjugation by the joint arms of Eng convenience which would result from doubts arising as land and America, to the formation of their settlement, uniformly resisted the authority of their conquerors, it is | minister at Washington, that the lieutenant governor of not apparent how they are to be considered "British sub- New Brunswick cautiously abstains, on his part, from jeets.' The claim which either Maine or New Bruns- exercising any authority in the disputed territory, which wick has on their obedience is only one founded on local could invite an encroachment as a measure of retaliation." allegiance; and the existence of this right cannot be es- And presuming that no more was intended to be asked Cablished in behalf of either party, except by an assump-from the American government than his majesty's authodon of the point in controversy. It can, therefore, hardly rities were prepared to grant in return, the undersigned be seriously contended that such a settlement, aided by cannot understand on what principle, consistent with the the recent attempts at New Brunswick to introduce its rule they contended for, complaints were urged by Mr. anthority by enrolling the militia, and serving process Vaughan, respecting the laying out of land into townalong the frontier, affords evidence of a possession as ships, and marking out roads, by the agents of Maine against claimants under a title confirmed by treaty, not and Massachusetts. Had the impression of the governonly of the land actually occupied by the individuals in ment of the United States been the same with that of question, but of an extent of country embracing several his majesty's government, as now explained, it is not millions of acres. probable that the disparity in numbers between the AmeThe undersigned has already disavowed for his gov-rican citizens and French Acadians, in the disputed ernment, any knowledge of, much less acquiescence in these irregular intrusions on the soil; and to avoid repetition, he also refers to his former note for an enumeration of the acts of sovereignty exercised by the American governments. territory, relied on by lord Aberdeen as a material fact, would have, at this time, existed. But, as the conclusion of lord Aberdeen on the demand of the American government is founded on the opinion "that the circumstances of the two countries are exThe objections offered to his allegation, "that New tremely different," and as it is believed that this supposiBrunswick can adduce no claims by which a jurisdiction tion has been proved to be erroneous, the undersigned derived from prescription or first occupancy of the coun- still flatters himself that on a fuller examination all obtry can be established," have now been met; and in main-jection will cease to a proposition which has for its mecaining a position, from the attempt to controvert which tive the prevention of dangerous collisions between ford Aberdeen has drawn important inferences, the un-neighboring and friendly powers, and that his majesty's dersigned has treated somewhat at length a topic, which, government will admit the propriety of abstaining from a In his previous communication, was only incidentally jurisdiction, the exercise of which, if persevered in, noticed. He then conceived that it would prevent pro- may lead to consequences for which the undersigned is tracted discussion, and perhaps render unnecessary the instructed to declare that the government of the United introduction of principles on which there was danger that States cannot hold themselves responsible. the two governments might not agree, to begin the deductions of the rights of the powers from the treaty of par-great as may be the inconveniences of an absence of extition, by which a separation of their dominions was affected. The undersigned takes the liberty of observing, that clusive jurisdiction on the frontiers, they have not been, on other occasions, deemed, either by the United States This method seemed also the most expedient, as so far or Great Britain, of sufficient magnitude to induce sacrias the treaty was appplicable, it, from its nature, preclud-fices of territorial claims, as is abundantly evinced by ed all reference to pre-existing titles, which became merg- conventions entered into by them respecting their ter ed in it; and it was believed that the ground which it oc- ritory. cupied covered the whole matter in controversy. The undersigned felt that he might then, without entering at all into the facts respecting 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 the first occupancy, or immemorial possession, can be made to bear on the principal subject in discussion between the two countries, or how they can effect the question of temporary jurisdiction." He would also adduce a fact that has fallen within the scope of his official knowledge, which shows that the opinion of the president was, at no very remote period, participated in by one of lord Aberdeen's predecessors in office, at the time referred to, at the head of his majes ty's government. Mr. Gallatin, in a despatch to the secretary of state of the United States, dated in July, 1827, after speaking of a conference with the first lord of the treasury respecting the northeastern boundary, observes that "Mr. Canning also suggested the proprieThe course of reasoning, however, which lord Aber-ty of abstaining on both sides, pending the suit, from any deen has adopted, does not now leave the undersigned at liberty to omit the preceding exposition; and he trasts That such a stipulation was not introduced into the that he has shown that there is no room for the applica- late arbitration convention, is probably to be attributed to tion of the rule of law cited by the British secretary of the supposed adequacy of the existing understanding bestate, viz: "that where a doubt exists, the party who has tween the parties, and to the fact that no collisions of im once clearly had a right, and who has retained actual pos-portance, not disavowed, had then occurred. session, shall continue to hold it until the question at issue may be decided." act of sovereignty over the contested territory." Considering the protracted discussion on the case of Mr. Baker, and the several other grievances alluded to It is sufficient reply to the inference deduced from the in the note of the 5th of May, or brought into view by silence of the treaty of Ghent, and of previous treaties, the correspondence at Washington, the undersigned canas to the exercise of jurisdiction by Great Britain, that not account for the conclusion to which lord Aberdeen it is evident from the proceedings on the occasion parti- has arrived, "that no practical inconvenience has been cularly mentioned, that the impression was entertained alleged by Mr. Lawrence to exist." He would observe, "that the greater part of the territory in question was on the remark which lord Aberdeen founds on this allegathen unoccupied;" nor does it appear that the French tion, that, if British jurisdiction has been heretofore ocsettlement, on which the British possession is now sup-casionally exercised in cases prejudicial to the rights of ported, was at that time known to the plenipotentiaries of either power. the United States, their omitting to notice these occurrences in a remote section of their dominions, 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 learns with regret, that the United States must consider 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 party stood pledged to each other to abstain from the The undersigned doubts not that the government of performance of any new acts which might be construed the United States will do full justice to the spirit in which into an exercise of the rights of sovereignty or soil over lord Aberdeen disclaims, by command of his sovereign, the disputed territory. As explained by lord Aberdeen, all intention of influencing the decision of the arbitrator the mutual restriction would apply exclusively to the ex- by any exercise of jurisdiction over the disputed territory; ercise of the presumed rights of the respective parties as and he takes this opportunity to remark that it has nat proprietors of the soil, not to their pretensions as sove-been his intention, either on the present or other occareigns of the territory. It is difficult to reconcile with the idea now conveyed, the assurance given early in the last year by the British sions, by any designation which he may, for convenience, or for the purpose of expressing the conviction of his government on that subject, have given to the district, |