actually dwelling upon the territory falling to them, respectively, which has heretofore been in dispute between them."

The territory which had been involved in the dispute between the United States and Great Britain, which was adjusted by the treaty of Washington, embraced nine millions of acres, or about one-third of the area of Maine. It was inaccessible by roads, and had been substantially taken out of the jurisdiction of Maine by the arrangement entered into in 1832 between the British minister at Washington and the Secretary of State for the United States. Its condition in respect to occupation and settlements was imperfectly understood. Attention. appears to have been principally attracted to the French settlement on the river St. John, commonly known as the Madawaska settlement, which embraced a large number of people, and was ancient and well known. In 1843, the government of Maine, in conjunction with the government of Massachusetts, instituted a commission to ascertain and define the limits of lots, in the enjoyment of which settlers and holders of grants were entitled to be quieted by the provisions of the fourth article of the treaty of Washington. This commission was soon terminated, and its labors seem to have been mainly confined to the Madawaska settlement, above referred to.

On the report of this commission deeds of conveyance were executed to the parties entitled by the land agents of Maine and Massachusetts. It did not then seem to be understood that the treaty operated, proprio vigore, to give title to the holders of grants and settlers coming within the provisions of the fourth article. On the contrary, that article appears to have been treated merely as a contract and agreement, to be subsequently executed and carried out by the parties bound by it.

It appears, also, from the report of this commission, to have been the impression of the gentlemen who composed it that their duties were confined to quieting the holders of British grants and settlers upon the public domain of Maine and Massachusetts, and they instituted no inquiries into the rights of such grantees and settlers upon lands belonging to individual proprietors.

Although the treaty, if in truth any action was necessary to carry it out, was obligatory, not upon Maine or Massachusetts, but upon the United States, the government of the United States has not seen fit, or found it necessary, to take any measures in the premises. In the analogous cases of Florida and Louisiana, where, under the treaties by which those Territories were acquired from foreign powers, certain prior rights in lands were secured to individuals, Congress has thought proper to make these rights more available, by instituting commissions, or by conferring special power upon existing tribunals. In reference to the treaty of Washington, it seems to have been left to Maine as the local sovereign, and to Maine and Massachusetts as the proprietors of the great bulk of the lands affected by it, to adopt such measures as were required by the national faith, and by the repose and quiet of the country. All which the government of the United States has ever done has been to sanction and ratify the agency thus naturally and properly assumed by Maine and Massachusetts.

The expenses of the commission instituted by those States in 1843

were audited and paid by the treasury of the United States, the proper officers adopting the views herein before given.

It very soon became manifest that the attention of that commission had not been called to numerous cases falling within the scope of its duties and powers, even upon the narrowest construction of them. This will not appear surprising when the great extent of the territory concerned-larger, indeed, than the whole State of Massachusettsthe entire absence of roads, the want of knowledge of their rights on the part of the settlers, and the shortness of the period during which the commission was in existence, are taken into account.

In the case of Little vs. Watson, adjudicated by the supreme court of Maine, and in which the decision was published in 1852, it was

held

First. That the treaty of Washington operated to give title by its own force to the holders of British grants coming within the fourth article; and

Secondly. That it gave title as well against private proprietors as against Maine and Massachusetts. The elaborate opinion of Chief Justice Shepley, announcing these results, will be found in the 32d volume of the Maine Reports, page 214. It is based, so far as authority is concerned, upon the similar case of United States vs. Pencherman, arising in Florida, and in which the decision of the Supreme Court of the United States, as pronounced by Chief Justice Marshall, may be found in Peters vii, 51.

Chief Justice Shepley says:

"The treaty of Washington, which provides that grants of land 'shall be held valid, ratified, and confirmed,' does not contemplate any future act as necessary to the validity, ratification, or confirmation of the grant. They are held to be so by those whose duty it may be to act upon them. The language addresses even more appropriately the judicial than the legislative department. It is the duty of the court to consider that treaty to be a law operating upon the grant, made under the authority of the British government, and declaring that it shall be held valid, ratified, and confirmed.

"It is further insisted that it cannot be permitted so to operate, and thereby defeat the title of the demandant to the land, without a violation of that provision of the Constitution of the United States which declares that private property shall not be taken for public use, without just compensation. It is not in the argument denied that public or private property may be sacrificed by treaty; but it is said that such a provision of a treaty as would take private property, without compensation, must remain inoperative, or suspended, until compensation has been made.

"Such a construction would infringe upon the treaty-making power, and make its acts depend for their validity upon the will of the legislative department, while the Constitution provides that treaties shall be the supreme law.

"The clause of the Constitution referred to is a restriction imposed upon the legislative department, in its exercise of the right of eminent domain. It must, of necessity, have reference to that department which has the power to make compensation, and not to the treaty.

making power, which cannot do it. This provision of the Constitution. will not prevent the operation of the treaty upon the grant of the tenant.-(Ware vs. Hilton, 3 Dallus, 236; United States vs. Schooner Peggy, 1 Cranch, 110. The demandant must seek compensation for the loss of his land from the justice of his country."

The principal of the decision in Little vs. Watson, unquestionably applies to the case of possessory claims arising more than six years before the date of the treaty. Such claims are to be "deemed” valid, while grants are to be "held" valid; the import of the two words being identically the same, and both of them addressing themselves, in the language of Chief Justice Shepley, rather to "the judicial than the legislative department." It is true, that from the nature of the case, something is to be done in reference to possessory claims which is not required in reference to grants, viz: that an exact demarcation and description of limits is to be made. But when such description is made by competent authority, no matter when made, it has relation back to the date of the treaty; at which time, by force of the treaty itself, if the decision in Little vs. Watson is correct, the possessory claim was converted into an indefeasible title against former owners, whether public or private. A release would be an instrument in which such a description might be appropriately imbodied, and so would be a desirable and valuable evidence and muniment of title, but would not itself constitute the title, which would be perfect without it.

In a case arising between a proprietor and the holder of a possessory claim under the treaty, at a nisi prius term of the supreme court of Mainé, holden during the last year in Aroostook county, the principle of the decision in Little vs. Watson was unhesitatingly applied.

If the treaty is merely a contract to be executed, it would be the duty of the government of the United States to obtain by purchase the title of private proprietors, where it is under obligation to secure a title to settlers and holders of British grants. But inasmuch as the treaty is enforced by the judicial tribunals as a perfected law, in the matters to which it relates, it seems to be the duty of the goverment of the United States to make prompt and sufficient indemnity to those whose rights of private property have been forced to yield to overruling considerations of public policy.

In view of the fact that the joint commission instituted by Maine and Massachusetts in 1843, had left unexamined numerous cases falling within the treaty, even under the narrow construction which appears to have been then given to it, and in view also of the more enlarged construction subsequently given to it by the judicial tribunals, the legislature of Maine, on the 12th of April, 1854, instituted a new commission, who reported on the 6th of March, 1855, and a printed copy of whose report accompanies this memorial.

It appears from this report, that upon lands belonging to private proprietors, claims by possession arising more than six years before the date of the treaty have been ascertained to the extent of about seven thousand acres; and also claims, to a less extent, by possession not arising six years before the date of the treaty, and therefore addressing themselves merely to the discretion of the government of the United

States, under that clause of the fourth article which provides that "in all other respects the two contracting parties agree to deal upon the most liberal principles of equity with the settlers actually dwelling upon the territory falling to them, respectively, which has heretofore been in dispute between them."

In one view of the case, the government of Maine might leave the individual proprietors, some of whom are not her own citizens, who have been deprived of their property by the treaty of Washington as authoritatively construed by the judicial tribunals, to seek for themselves that redress which they could not fail to receive from the justice of the federal government, from the constitutional exercise of whose power this treaty derives its force. But the government of Maine is itself concerned in the subject-matter, in the interest of the repose and quiet of the territory lately in dispute with Great Britain; and, in fact, in that interest it made the provisions of the fourth article the condition of the most reluctant assent which it gave to the treaty. In that interest the government of Maine has instructed the undersigued, while prosecuting here its own claims for pecuniary indemnity for lands conveyed and to be conveyed under the treaty to settlers and holders of Britsh grants, to ask the adoption by Congress of some comprehensive measure which shall, with the least possible delay, quiet all questions between proprietors and occupants in a territory whose growth and development have been so long retarded by the controversy in respect to the northeastern boundary of the United States.

The undersigned is also instructed to ask that the same measure may embrace some provisions for the indemnification of private proprietors for losses of timber under the arrangement of 1832 between the United States and Great Britain, which suspended the jurisdiction of Maine over a portion of the disputed territory, and of those private proprietors whose lands were taken away by the adoption in the treaty of Washington, as a conventional line, of the exploring line run northerly from the monument at the source of the St. Croix, instead of the due north line from that point, as established by the treaty of peace of 1783 between the United States and Great Britain. GEORGE M. WESTON.

WASHINGTON, February 6, 1856,

Letter of George M. Weston to the Hon. Committtee on Claims of the U. S. Senate.

I ask the Committee on Claims to consider

First. What was actually agreed between the governments of the United States and of Great Britain as to the jurisdiction of the "disputed territory" of Maine?

Second. What the authorities of New Brunswick claimed to have been agreed as above, and what jurisdiction they actually exercised? Third. To what extent, and how long, Maine did, in fact, forbear the exertion of her jurisdiction in deference to the wishes of the United States?

Rep. No. 168-2

Upon the first point, I remark, that the arrangement really entered into at Washington is found in a letter of July 21, 1832, from Mr. Livingston, Secretary of State of the United States, to the British. minister at Washington, in which Mr. Livingston says:

"Until this matter shall be brought to a final conclusion, the necessity of refraining on both sides from any exercise of jurisdiction beyond the boundaries now actually possessed, must be apparent, and will, no doubt, be acquiesced in on the part of his Britannic Majesty's province, as it will be by the United States.

The British minister, Sir Charles R. Vaughan, in his reply, says: "He is further to assure Mr. Livingston that his Majesty's government entirely concurs with that of the United States in the principle of continuing to abstain, during the progress of the negotiation, from extending the exercise of jurisdiction, within the disputed territory, beyond the limits within which it has been hitherto usually exercised by the authorities of either party."

Upon the second point, I remark, that the authorities of New Brunswick so perverted the before recited agreement, or assumed such a state of facts as to the jurisdiction which had been hitherto usually exercised," as to claim the exclusive custody of the valleys of the St. John and Aroostook, and they did, in fact, keep out any interfering jurisdiction of Maine until the winter of 1838-39.

These claims of New Brunswick are matters of historical notoriety. They led to the (so-called) Aroostook war of 1839.

In the winter of 1838 Maine directed her surveyor general to survey certain townships on the Aroostook river. This was the first movement towards taking jurisdiction in that quarter which Maine had made. The surveyor general, in discharging this duty, received from James McLaughlan, a British officer, claiming to be the "warden of the disputed territory," a letter, of which the following is a copy:

"Whereas the operations in which you and your party are engaged in surveying land and locating settlers on this river, under the authority of the State of Maine, appears to me to be a violation of the existing arrangements subsisting between the British government and that of the United States; and whereas, by my instructions, it is made my duty to protest against any act implying sovereignty or jurisdiction on the part of any government or State, or of citizens or subjects of any government or State, exercised within the territory in dispute between the two governments of Great Britain and the United States, and known by the name of the 'disputed territory,' until the right to that territory shall have been determined by negotiation between the two governments:

"I do hereby, accordingly, in my capacity of warden of said territory, duly approved by the British government, in pursuance of my duty on behalf of her Majesty, protest and warn you forthwith to desist from proceeding further with your proceedings.'

On the 13th of February, 1839, Sir John Harvey, governor of New Brunswick, in a letter to the governor of Maine, remonstrating against the sending by the latter of a force to expel trespassers from the Aroostook river, says:

"I have just heard, with the utmost surprise and regret, that, with