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When the jurisdiction is defined, the course would be to enforce the laws of either country within the respective limits, and to demand the restoration of offenders who may take refuge beyond them; a- course from which both
parties are withheld where the civil jurisdiction is in dispute, from the risk of : recognizing a right or producing a collision.
There is another subject connected with the question, to which it is necessary that I should advert.
In 1839, measures were taken to prevent the cutting of timber in the Disputed Territory, and an act was passed under which the Warden was commissioned to seize any such timber which might be cut by British subjects. The American posse was also stationed there with the same ostensible object. Applications were subsequently made to the Government for the admission of timber which had been previously cut in 1838 and 1839, which was allowed; and a limited permission was also granted to the settlers at the Madawaska to cut timber in the lands occupied by them. Under these regulations, large quantities of timber were introduced in 1839 and 1840, bonds being taken for a duty of 4s. per ton upon it. My letter of the 9th instant will have apprized your Lordship that the American land-agent had levied a duty of 58. per ton upon timber so cut at Madawaska; and from a subsequent application made to me, I have reason to believe that a similar duty has been levied upon all the timber introduced, on the alleged ground that it was cut in the winter of 1838 and 1839.
Mr. Mc Lauchlan is of opinion, that the quantity of timber from the Disputed Territory, now floating to St. John's, amounts to 10,000 tons; and as there is no practicable means of distinguishing timber cut in those years, and subsequently, it is obvious that the restriction imposed on the cutting of the timber is practically evaded by the Americans, who derive a large revenue from it. Mr. Mc Lauchlan adds, that he has no reason to think that the English lumberers have been engaged in these operations.
I have no doubt that the great demand for this timber at St. John's, and the apparent hardship of excluding that which had already been cut, led to · the regulation; and as the timber has been purchased by persons within the
province, it will be necessary that notice should be given of the enforcement of the restriction.
I have appointed the Councił to assemble on Monday, the 28th instant, When the necessary measures will be taken.
The effect of excluding the timber will, I hope, lead the Americans to seek an early adjustment of the questions at issue; and if the claims to the respective portions of the territory were settled, or even a line defining the jurisdiction, I should see no objection to the readmission of the timber, on payment of a moderate duty, it being understood that the subjects of either Government should have permission to cut timber within their respective limits.
Till the regulations can be rescinded in Council, and a proclamation issued, I have required, in justice to our lumberers who have cut timber in the provinces subject to duty, that bond for the whole amount of the duties should be taken, without regard to the charges imposed by the Americans, and a declaration from the owners that the timber was cut in 1838 and 1839, previous to the agreement of the 25th of March. It may be proper to remark, that it had been the practice till then, to levy equal duties on the timber cut in the Disputed Territory and within the province, and to carry the amount of the former, when recovered on the bonds, to the account of a separate fund - hereafter to be rendered when the Boundary Question should be settled. .
The restriction on the importation of timber will be inconvenient to the merchants, but its admission is unjust to the British lumberers, and impolitic 'pending the negotiations."
It only, remains for me to add to these lengthened details, that I will endeavour, as far as possible in the execution of the trust confided to me, to guard against collisions on the one hand, and the compromise of the rights of Her Majesty's subjects on the other. "?
In doing this, I am unable to foresee the occasions which may require that I should act, or abstain from acting. Your Lordship has observed, that the settlement of the Americans at the Fish River ought not to have been 'admitted, but that, under existing circumstances, it would not be advisable to
disturb them. There can be no doubt that, according to the laws of this province, they are legally within its jurisdiction, and that they are claiming, with the full sanction of their own Legislature, a jurisdiction over part of the district to which our authority has extended.
The land-agents of Maine and Massachusetts, I am informed, have been recently there to regulate the distribution of the charge of their establishments, those States having equal claims on the territory they may acquire, the value of each alternate township on the Restook being accounted for by Maine to Massachusetts.
The co-operation of those States, and indeed of others, is also apparent from the tenor of their Legislative Reports and Resolutions in the present year.
I have, &c., (Signed)
1. G. COLEBROOKE.
Inclosure 23 in No. 28.
Mr. Mc Lauchlan to Mr. Reade.
Entrance of the Grand River Madawaska, Sir,
June 11, 1841, Friday, 11 o'clock, A.M. I HAVE just had the honour to receive by express his Excellency the Lieutenant-Governor's despatch of the 9th instant, and I avail myself of the return of the person to Woodstock, to state to you, for the information of his Excellency, that I shall immediately communicate with the assessors of county rates, and desire them on no account to interfere with the American armed posse at the Fish River in their assessment of the parish of Madawaska, which takes place some time this month. With respect to the further instructions of his Excellency, I have only to say, that I shall strictly act up to them in every respect.
I have, &c., (Signed) J. A. Mc LAUCHLA
P.S.-Your two letters bearing date the 2nd instant I had the honour to receive the 8th instant.
Inclosure 24 in No. 28.
Mr. Mc Lauchlan to Sir W. Colebrooke.
May it please your Excellency,
Madawaska, June 19, 1841. WITH reference to my communication to your Excellency of the 4th instant, I have again the honour of renewing that subject, and which I am induced to do from the circumstance of the reports that have reached me touching the probable result, should an assessment be made in the Madawaska settlement above the entrance of the Fish River.
In my letter to your Excellency's Private Secretary, of the 15th instant, I stated, for your Excellency's information, that the land-agent for the State of Maine and Massachusetts had passed through the settlement to that post at the Fish River, and where it now appears they were apprized of the intention of the Provincial Authorities to assess the inhabitants on the River St. John above the Fish River. This, I am informed, called forth their disapprobation, as well as a remark, that should the British Government attempt to exer. cise jurisdiction above their block-house, it would not only be resisted, but a military force sent to occupy that section of the country.
. I have therefore thought it advisable to address the assessors on the subject, a copy of which I beg to transmit to your Excellency; and as Her Majesty's Attorney-General requires my attendance at the Supreme Court at Fredericton next week, I shall then have the honour of bringing the subject again personally before your Excellency. But, in the mean time, I have to acquaint your Excellency that no assessment will be made in the settlement until the pleasure of your Excellency be known.
I have, &c.,
Inclosure 25 in No. 28.
Mr. Mc Lauchlan to the Assessors of Madawaska County and Parish Rates.
Madawaska, June 19, 1841. SINCE addressing you by desire of his Excellency the LieutenantGovernor, on the 11th instant, circumstances have transpired which induce me to believe, should any assessment be made by you on the inhabitants of Madawaska residing above the American armed posse at the Fish River, must lead to a serious misunderstanding between Her Majesty's Government and that of the United States. , I have therefore to request that you will, for the present, defer making any, assessments in that part of the settlement, until I am again afforded an opportunity of bringing the subject under the consideration of his Excellency.
I have, &c., (Signed) j. A. Mc LAUCHLAN,
Warden of the Disputed Territory.
Mr. Fox to Viscount Palmerston.-(Received August 29.)
Washington, August 11, 1841. · SINCE writing my despatch of the 8th instant, I have received the inclosed despatch from Lord Sydenham, in reply to the communication which I had addressed to his Excellency upon the present state of the negatiation for regulating the provisional custody and occupation of the Disputed Territory. :
I have, &c., (Signed) H. S. FOX.
Inclosure in No. 29...:
Government House, Kingston, (Extract.);
. August 3, 1841. MR. MOORE transmitted to me yesterday, by a special messenger, your despatch of the 27th of July.
-1hear with pleasure that the Government of the United States have at length resumed the consideration of the best means for maintaining tranquillity and preventing further encroachments in the Disputed Territory pending the adjustment of the question of sovereignty, and that the propriety of effecting that object, through a force under the control of, and responsible to, the Central Government on either side, to the exclusion of the civil posse, has been admitted by the Secretary of State. "
But the satisfaction which I should otherwise feel, is greatly diminished by the statement of the terms upon which, as it appears from vour despatch, and from the projet of a note inclosed in it, Mr. Webster proposes to effect such an arrangement, which are such as I should neither feel authorized by my instructions to sanction, nor indeed could recommend Her Majesty's Government to agree to. . Mr. Webster's proposal goes not merely to the retention by the United States of the block-house at the mouth of the Fish River, and the establishment there of a military force in the place of the civil posse at present in occupation of that post, but to confine the occupation of the Territory in dispute by Her Majesty's forces to the north bank of the St. John's, thereby virtually, excluding them from "affording protection, if required, to Her Majesty's subjects on the south bank of that river, on which, as you have justly stated, a: large population is extended, whose claims for such protection could not be : overlooked or neglected.
Such a proposition I consider wholly inadmissible. The Madawaska settlement, as you are aware, extends along both banks of the river; and it would be impossible to refuse to Her Majesty's subjects, whether resident on the one or the other bank, that protection to which they are justly entitled, or to abandon that jurisdiction which has been uninterruptedly exercised ever since Canada became part of the British Empire.
The troops are, it is true, now stationed on the north bank of the river, and will probably remain so; but the moral protection which Mr. Webster professes to think would still be afforded by their presence there, would undoubtedly fail, if such an arrangement, which is one adopted at present purely with a view to the convenience of lodging the troops, were made obligatory, and it could be inferred that they were debarred from that active interposition which they are now directed to afford, in case of need, to the inhabitants resident on the one bank as well as on the other. No security whatever could be given, that any attempted exercise of jurisdiction by the State of Maine within that settlement on the south bank of the river, against which we have always protested, and which Her Majesty's civil servants have been instructed to resist by force, if necessary, would be prevented; and it is most improbable that such would be the case, if the duty of prevention were aban-doned to the United States' Authorities, however well disposed they might be to perform it.
If, therefore, this condition be considered indispensable by Mr. Webster, an arrangement becomes quite impossible ; and I must also add, that the pretension on his part appears perfectly unjustifiable, for it exceeds any which has hitherto been seriously advanced, even by the State of Maine itself.
The arrangement made between Sir John Harvey and the Government of Maine, and confirmed by General Scott, as is correctly stated in the draft of your note, which you have been good enough to transmit, limited the temporary jurisdiction of each party, on the one side, to the valley of the Restook, and on the other, to that of the St. John's; and although the blockhouse at the mouth of the Fish River was most improperly, and in direct
violation of that contract, erected by the Maine Authorities, it was contended that the Madawaska settlements did not extend to that point; and that circumstance was, to a certain degree, alleged in justification of the establishment of that post.
Whilst, therefore, I remain persuaded of the importance of arriving at? an arrangement with the United States' Government, which shall remove the custody of this territory from the interference of the Government of Maine, I see no possibility of admitting this new condition; and if it be insisted on, Í have no alternative, unless otherwise instructed by Her Majesty's Government, than to take such measures as may appear necessary to check any further' encroachments on the part of Maine, even at the hazard of collision. .
" That object, however, is of so much consequence, that if this difficulty can be removed, and Mr. Webster is disposed to treat upon another basis, I am of opinion that we may depart, in some degree, from the terms which were stated in my despatch of the 25th of June, 1840, and which are in accordance with Sir John Harvey's agreement, namely: the valley of the St. John's on: the one hand, and that of the Restook on the other; and I should be disposed? to agree to the occupation of Fort Jarvis by the troops of the United States, confiding to them the exercise of jurisdiction over the southern bank of the river above the Fish River, but leaving to us that below its mouth.
Viscount Palmerston to Mr. Fox.
Foreign Office, August 31, 1841. I HAVE to acknowledge the receipt of your despatches of the 8th and 11th instant, inclosing copies of your correspondence with Lord Sydenham, and of the papers therein referred to, relative to the present state of your negotiation with the Government of the United States, for regulating' the provisional custody and occupation of the Disputed Territory.
I have to state to you, in reply thereto, that Her Majesty's Government concur in opinion with Lord Sydenham, that it would not be right or safe to. agree to any arrangement which should preclude Her Majesty's troops from, moving, if necessary, into that part of the valley of the St. John which lies south of the river; but Her Majesty's Government are of opinion, that it would be highly inexpedient to consent to an arrangement by which United States' troops should be permitted, with the consent of the British Government, to occupy any position in the valley of the St. John. The agreement made beiween Sir John Harvey and General Scott is perfectly clear, and is as fair as it is clear; and you are instructed to adhere to that arrangement, which leaves the Americans in occupation of the valley of the Aroostook, and the British in occupation of the valley of the St. John. If this basis of arrangement were once agreed to, no difficulty could be experienced in defining the boundary between those two valleys sufficiently for the purpose.
I am, &c., (Signed) PALMERSTON.
No. 31. Mr. Fox to Viscount Palmerston.—(Received October 1.) (Extract.)
Washington, September 12, 1841.. IN my despatches of August the 8th and of August the Flth, I had the honour to forward to your Lordship copies of various correspondence between the Governor-General of British North America and myself, and between the United States' Government and myself, upon the subject of a proposed amended arrangement for the provisional custody and occupation of the Disputed Territory, by a limited force, on both sides, of regular troops, to the exclusion of the armed civil posse of the State of Maine.