USA > Maine > Piscataquis County > Historical collections of Piscataquis County, Maine, consisting of papers read at meetings of Piscataquis County Historical Society, also The north eastern boundary controversy and the Aroostook War, V. I > Part 21
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settlement. There is no distinction, in this respect, between what is above and below that river. The Madawaska settlers are enrolled in the militia of this Province; in Captain Duperree's time, there were two companies. In 1824, they were formed into a separate battalion, consisting of five companies: I am major of the battalion. They turn out very regularly. I never heard of their making any objections to training.
Henry Clopper sworn. I am clerk of the peace and register of deeds for this county. I was appointed clerk in 1823, and register in 1821. I succeeded my father in both offices. I have discharged the duties since 1820, having acted for him before receiving the appointment myself. Parish officers were appointed by the sessions for the parish of Kent. There was a separ- ate list for the Madawaska district, in that parish. I have been as far up the river as ten miles above the Grand Falls. There are a great many deeds registered in my office of land in Madawaska, where the parties are the Madawaska settlers, some as long since as twenty- five or thirty years back. As clerk of the peace, I receive the money given as bounty for grain raised on new ground in this county. In May, 1825, the defend- ant, John Baker, applied to me for the bounty for grain raised by him on new land. He received the bounty from me. The paper now produced by me is the docu- ment under which he became entitled to it. I observed to him that he was an alien, and I was not aware whether he was strictly entitled to it. He said his certificate had passed the session. The paper I now hold is the certifi- cate, and the only one; it has been on file in my office since.
The paper was here put in, and read by the clerk of the Crown, and is as follows:
"I, John Baker, of Kent, do swear that ninety
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bushels of wheat were really and truly raised on the land occupied by me, and are actually of the crop of the year 1823, (1822) and that the wood was cut down, burnt, or cleared off from the land on which the same was raised within two years previous to the time that the said crop was taken off, and that they were of the first and only crop of grain raised on land from which the said wood was so cut down, burnt, or cleared off, as aforesaid.
"John Baker.
"Sworn before me, at Woodstock, the 2d of July, 1825, (1823.)
"John Bedell, Justice of the Peace. "I verily believe the facts above stated to be just and true.
"John Bedell."
I paid him by a check on Mr. Needham; the amount was £4 5s 3d; this is the order I gave Mr. Needham.
Cross-examined by defendant. Have you got the receipt I gave for the money? The witness here pro- duced the schedule and signature to it by Baker, and said this is the only receipt he gave me, except the one given to Mr. Needham.
Mark Needham sworn. I remember the circumstance of paying this order ; the words "received payment" on it are in my writing. I have no doubt I paid it, but have not now any particular recollection of the defendant. I considered it paid, and charged Mr. Clopper with it.
George I. Dibblee sworn. I am acquainted with the hand-writing of the defendant, John Baker-have seen him write; the signature to the receipt on the order is his hand-writing ; I have no doubt of it.
Simon Abear, or Hibert, sworn. I live two miles below Madawaska river; have lived there four (forty) years next month; I moved there from the French vil-
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lage about ten miles above Frederickton. I have a grant of my land from this Province; it is the first grant in the Madawaska, and was made about two or three years after I moved up. I live under this government, and have always lived under it; all the Madawaska settlers live under the same Government. I vote at elections; the first time was about eight years ago. Baker came last year to my house; he asked me what time I go to train my company ; I am a captain of militia; he said there is not much occasion to train at Madawaska. I inquired the reason; he said nothing; I told him I would go next Saturday-he must be stronger than me to prevent me. I know where Baker lives ; he came five or six years ago; he has always lived at the same place- raised grain there; I believe he cultivated no where else. Baker said I had better not train but did (not) ask me not to train.
George West sworn. I know the defendant, Baker; have known him since 1820; he was then settled at the Bay Chaleur; I saw him next at the Madawaska; this was when Judge Bliss was President, I believe 1824. I seized 300 logs from him; I was then a seizing officer ; he said he wished to become a British subject, as he had been here the necessary time; he inquired of me what steps it would be necessary for him to take; I told him as far as my information went; this was at the place where he lives; it is called Baker's mill stream ; he spoke as if he considered himself a resident within this Prov- ince, and wished to have all the lenity shown him on that account; it was shown him; he was allowed to redeem the loss at the rate of 2s 6d per thousand feet, counting three logs to a thousand. The logs were seized as cut on Crown lands without license. I have seen him since ; there was a warrant of survey sent to me to execute of this land where Baker resides; it was in Samuel
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Nevers' name; Baker himself attended the execution of the warrant, and directed the course of the lines; the privilege was considered Baker's, but taken in Nevers' name, as Baker was not a British subject: I think this was about two years ago.
The evidence on the part of the prosecution having here closed, the defendant was called upon for his defence ; he addressed the court nearly as follows :
"I am a citizen of the United States, and owe alleg- iance to that country. I have lately received my deed from the States of Maine and Massachusetts. I hold myself bound to their Courts. I live in American terri- tory, and hold myself only liable to the courts of that place, being the county of Penobscot, in the State of Maine. I enter no defence, and call no evidence. I do decline the jurisdiction of this court."
The defendant alluded to a letter he had, in the course of the trial, handed to the Chief Justice; which was delivered to him, and he was informed he might, if he chose, read it as part of his defense, but declined doing so.
The Attorney General then addressed the Court, and said, that, as he had, in his opening, stated generally the nature of the case and evidence, and the defendant had not made any defence, he did not think it necessary, after so much time had been taken up and the evidence so fully gone into, to address the jury, but would merely read two or three additional authorities, (which he did, from Starkie's Evidence, 'Compyn's Digest, Blackstone's Commentaries, and Archbold's Criminal Pleading, ) and then leave the case in the hands of the Court.
Mr. Justice Chipman charged the Jury. He began by stating the indictment and plea, the general nature of the offence, and the proofs requisite to support the charge. He said that the body of the offence was the
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conspiracy, and combining and confederating together with the intent laid in the indictment. In the present case, the intent charged was to bring into contempt the King's authority, to spread false opinions among his subjects as to his power and prerogative over them, and in fact completely to unsettle their minds as to their allegiance to the Government under which they lived. This mind and intention must be made manifest by overt acts. It was usual, though held not to be absolutely necessary, to set forth overt acts in the indictment; but if, from the facts proved in evidence, the jury should be satisfied that the defendant, Baker, now on trial, did combine and confederate with one or both of the other defendants named in the indictment with the intent imputed to them, that would be sufficient to make up the offence. As the essence of the crime was the combining, two persons at least must be engaged in it. The Judge then stated that before going into a consideration of the evidence, he would dispose of the ground which the defendant had set up when called upon his defence: which was, that the place where the acts were committed was in the territory of the United States, and that he, the defendant, was not amenable to the laws, or subject to the jurisdiction of the Courts of this Province. The Judge then stated that the question as to the national rights to this territory, now well known to be in controversy, is one which this Court is utterly incompetent to enter into, and can have nothing to do with. It is a matter of state, to be settled between the two nations, Great Britain and the United States; to be dealt with by the Governments of the two countries, and not by this Court. The Court will only inquire whether the place in question is actually in the possession and under the jurisdiction, and laws of this Province; and if so, the Court will maintain
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that jurisdiction, and continue the exercise and protec- tion of those laws, until some act of the King's Govern- ment shall effect a change. There can be no stronger evidence of the possession of a country than the free and uncontrolled exercise of jurisdiction within it; and the Court is bound by its allegiance to the Crown, and its duty to the King's subjects, to act upon this, which it considers as the only principle truly applicable to the case. This principle has already been acted upon in this Province.
The learned Judge then referred to the case of the sloop Falmouth, adjudged in the Court of Vice Admir- alty of this Province many years ago, (1806.) He stated this to have been the case of a seizure by a British officer of an American vessel lying in the waters of Passamaquoddy Bay, for landing her cargo within this Province; no foreign vessels being at that time admis- sible into the ports of these colonies. The counsel for the prosecution in that case went at large into the ques- tion of right to all the islands in that bay, under the provisions of the treaty of 1783, and contended that, by virtue of that treaty, all the islands, including Moose, Dudley, and Frederick Islands, then in the actual pos- session of the United States, of right belonged to Great Britain; and that no foreign vessel could lawfully lade (land) a cargo in any part of that bay; but the learned judge of that Court at that time, now one of the Judges of this Court, (Mr. Justice Botsford, ) in pronouncing judgment, would not enter upon the question of right to the islands, which he considered a matter of state for the two Governments to decide upon; but finding the three islands beforenamed to be under the actual pos- session and jurisdiction of the United States, he applied the principle of the law of nations applicable to a water boundary between two different countries, and directed
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his attention solely to the point whether the vessel laded her cargo on the British side of a middle line drawn between these islands then in the possession of the United States, and the British islands opposite. It thus appears that this doctrine of taking the actual state of things as we find them, and applying the law accordingly, has been already acted upon in this Prov- ince, in an instance where it was favorable to citizens of the United States; and this Court has no hesitation in applying the same doctrine, which it considers as the true doctrine, to the present case. It is to be observed that the defendant in the present case has given no evidence whatever of the place in question being in the possession or under the jurisdiction of the United States; that he does not appear to be in any respect an agent of that Government, or acting under its authority ; and that what has been done must be considered as being altogether the acts of unauthor- ized individuals. The place where the transaction occurred goes by the general name of the Madawaska settlement; and if this settlement shall appear to be, in point of fact, under the jurisdiction of this Province, the case must receive the same consideration, and the conduct of the defendant be viewed in the same light, as if the acts complained of had been committed in any other part of the Province, one hundred miles further down on the river St. John, or even in this town of Frederickton.
The learned Judge then proceeded to read over the whole of the testimony from his notes, commenting upon the several parts of it as he went on. He considered the overt acts as to hoisting of the flag of the United States with the express intention of subverting British authority, as most distinctly and fully proved and asked what more unequivocal indication there could be of an
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intention to bring the King's Government into con- tempt, and of unsettling the administration of the laws of the Province, than the erecting of a foreign standard with this declared purpose. With respect to the trans- action with the postman he directed the jury that if they considered the acts of the defendant in this instance to have proceeded from the combination and confederacy to subvert the King's authority, the defendant was properly chargeable with them under this indictment; and that, in forming their judgment of this and all the other facts detailed in evidence, they should take into view all the circumstances of time and place, and of action, in determining the character of the several transactions. With respect to the written agreement, by which they bound themselves to resist the British laws, he thought that was sufficiently proved with regard to the American citizens; but it was not made out in proof that this was the same paper which was handed to the French settlers; but the learned Judge said that he could not admit of any distinction in this respect between aliens being under the jurisdiction and protection of the British laws and natural born subjects ; the former owed a local allegiance; and what would be a breach of the laws by the one, would be so by the other,
The learned Judge, in closing, stated, that if, in determining the present case, this court was to under- take to enter upon a question of a conflict of rights between the two nations, it might be disposed to approach it with a degree of trepidation : but this case was altogether unembarrassed by any such considerations. It presented a chain of evidence of clear possession and undisturbed jurisdiction on the part of this Province from the period of its first erection down to the present time -- a space of more than forty years. One of the oldest inhabitants in the Madawaska settlement had
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proved that he removed thither from the lower part of this Province forty years ago; that he, and all the set- tlers there, always considered themselves as living under this Government. It is also proved that these inhabi- tants have received grants of land from this Govern- ment, and have, from the beginning, been enrolled in the militia; that they have voted at elections for the county of York ; have applied to the Provincial courts for redress in all suits at law; and have uniformly exer- cised all the privileges, and been subject to all the duties, of other inhabitants of the Province; excepting only that the sheriff states that he has not summoned them to attend on juries at Frederickton by reason of their great distance; but he expressly declared that he has always been in the habit of serving writs throughout the whole of that settlement, as much as in any other part of his bailiwick. It appears also that the defend- ant, Baker, considered himself as living within the terri- tory, and under the jurisdiction of this Province; that he applied to Mr. Morehouse, the Provincial magistrate for processes to recover his debts from inhabitants in the Madawaska settlement; that he received the Provincial bounty for grain raised on land, which there can be no question is the land on which he now resides, and this on his own affidavit, stating himself to be John Baker, of the parish of Kent. It further appears that he attended a Provincial Surveyor in laying out this very land, for which a warrant of survey, under the authority of the Province, was in a course of execution, giving directions as to the course of the lines; the grant being intended for the benefit of Baker, although it was to be taken out in the name of Nevers, a British subject. Baker himself, also, had an intention of being naturalized, and stated to one of the witnesses, Mr. George West, that he had resided the necessary time, and wished to know
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what other steps were necessary for this purpose. This conversation taking place on the spot where he lived, at the head of the Madawaska settlement, and at a time when logs cut by him had been seized as being cut on crown lands without license; and Baker claimed to be dealt favorably with by reason of his residence within the Province, and his intention to become naturalized. The learned Judge also stated that it appeared from the evidence that there was no line of division to be drawn between any parts of that whole settlement, as to the possession and exercise of jurisdiction by this Province ; that he could not imagine any principle upon which any such line of division could be made; that one of the witnesses spoke of the settlement having, when he first knew it, commenced seven miles above the Great Falls ; that it has since extended downwards to within two or three miles of the Falls. It has also been gradually extending upwards, and all the inhabitants, in every part of it, were equally under the jurisdiction of this Prov- ince, and entitled to the benefit and protection of its laws ; and if they were to be transferred from this juris- diction and protection, it must be by some act of the King's Government, competent for that purpose ..
The learned Judge, with these observations, left the case to the Jury, directing them to consider it in the same light, and to give the defendant the benefit of the same considerations, that they would in the case of any other inhabitants of the Province.
The jury retired from the box, and, after about an hour's deliberation, returned into court with a verdict of guilty.
The defendant was then required to enter into recog- nizance to appear on Monday next to receive the sentence of the court. The same bail were accepted as before, in the same amount.
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The Attorney General stated to the court that he should enter a noli prosequi on the ex-officio information which had been filed against the defendant; and also on the indictment which had been found against John Baker and six others for a riot, so far as regarded the present defendant.
The witnesses were informed that their further attend- ance would not be required.
Monday, May 12, 1828.
Present: His Honor the Chief Justice, Judge Bliss, and Judge Chipman.
The defendant being called, and appearing, the Attor- ney General proceeded to make several observations on the case, and concluded by moving the judgment of the court.
His Honor, Mr. Justice Bliss, then inquired of the defendant if he had anything to say in mitigation, or any affidavits to produce.
The defendant said he had little to say. He was brought there, and made amenable to the jurisdiction of the court, and must of course submit. He had no affi- davits to produce: there were some facts, which, if they had been brought forward, might have been material; but as he was not prepared with the whole, he had thought it better not to adduce any proof. He con- cluded by submitting himself to the consideration of the court.
Mr. Justice Bliss then proceeded to pass sentence to the following effect :
That the defendant had been indicted by the grand jury of the county of York for a seditious conspiracy, entered into by him and others, within the jurisdiction of this court, to which he had pleaded not guilty, alleg- ing, at the same time, that he did not consider himself
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amenable to the process of this court, being a citizen of the United States, and that the offence charged was committed within their territory; but the court could not admit this to be the case, it appearing clearly that the Madawaska settlement where the offence was com- mitted, has been, from the first erection of the Province, hitherto under our laws, and subject to our jurisdiction ; and that the defendant, after a very fair and full investi- gation of the case, had been convicted by a jury of the country ; and it now remains for the court to pass their sentence upon him for this offence; in doing which their object was to treat him with that lenity which, so far as was consistent with the end of justice, is uniformly extended to His Majesty's natural born subjects; and, although the court considered the offence of which he had been found guilty of a very aggravated nature; they have had regard to his previous long imprisonment ; and their object being to secure the future peace of the country, and not to pass a vindictive sentence personally against him, they had awarded the punishment accord- ingly ; and did sentence him to be imprisoned in the common gaol of the county of York for the term of two calendar months, and to pay a fine to our lord the King of twenty five pounds, and remain committed until the same was paid.
The defendant John Baker was then taken into custody by the Sheriff.
DEFENCE OF THE FRONTIER OF MAINE.
A communication in relation to this subject has been made by the Secretary of War, in compliance with a resolution, to the U. S. Senate. It contains a variety of documents, and among them the reports of Gen. Wool and Major Graham, of a reconnoissance of our
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Frontier made by them the past summer. This recon- noissance was made in obedience to instructions from the War Department, given in consequence of the repre- sentations to the department by Gov. Kent, and the earnest solicitations made by him of the importance of such a movement, and the necessity of having our frontier better fortified. We shall give such portions of these reports as will be of interest to our readers, commencing with Gen. Wool's.
From the Report of Brigadier General John E. Wool to the Secretary of the Treasury. Head Quarters, Troy, N. Y. October 30, 1838. S
Sir :
Herewith, I have the honor to transmit a report of the military reconnoissance of the frontier of Maine, made during the summer past, in obedience to instruc- tions received from the War Department, dated the 12th May and 16th of June last.
Agreeably to your verbal instructions communicated at Washington, I repaired to Augusta, (Maine. ) and conferred with his Excellency Edward Kent, on the sub- ject of the reconnoissance required. He not only appeared much pleased with the object, but offered every assistance in his power to aid in its prosecution. I remained at Augusta until I was joined, the 28th June, by Major Graham and Lieutenant Johnson, of the topo- graphical engineers. On the 29th of June, we pro- ceeded to Bangor, where I was delayed until the 3d of July, in consequence of some preparations on the part of Major Graham, before he could commence his topo- graphical sketches or surveys. The Major having com- pleted his arrangements, we set out on the 3d of July
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for the examination of the northwestern frontier of the State, confining ourselves within the undisputed limits, as prescribed by your instructions of the 16th June.
After exploring Moosehead lake, Moose River, and the country west of Moosehead lake as far as the high- lands which divide the State of Maine from Lower Canada, I selected a position for the establishment of a military post for the protection and defense of the northwestern frontier of the State, on the height about one mile north of Moose river, fourteen miles south of the line, on the road called the Canada road, leading to Quebec. This position is a commanding one, and would be highly important if by any circumstance England should be induced to invade Maine, from the direction of Quebec or Lower Canada. It is situated on the only route by which a military force would attempt to pene- trate the country from Lower Canada. Any other route would be attended with almost insurmountable difficulties, and could not fail to retard the advance of any army. On either side of the Canada road, for nearly or quite forty miles south of the line, the country is unsettled and covered with a dense forest, through which roads must be cut and made, streams bridged, and boats built, and where neither forage, provisions or any other sup- plies could be obtained. If England, however, should make war upon the United States in order to secure the possession of the disputed territory in question, she would not waste her resources by contending for it in the wilds or dense forests of Maine. Having an army and a navy at her disposal, she would endeavor to compel the U. States to a cession of it by the destruction of our commerce, navy depots, commercial cities and frontier towns. These, with the present disposition of the military establishment of the country constitute our vulnerable points, and of which England would not fail
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