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Mendenhall - </title> - - <link rel="coverpage" href="images/cover.jpg" /> - - <style type="text/css"> - -/* DACSoft styles */ - -body { - margin-left: 10%; - margin-right: 10%; -} - -/* General headers */ -h1 { - text-align: center; /* all headings centered */ - clear: both; -} - -/* Chapter headers */ -h2 { - text-align: center; - font-weight: bold; - line-height: 1.5em; -} - -div.chapter { - page-break-before: always; -} - -h2.nobreak { - page-break-before: avoid; -} - -/* Indented paragraph */ -p { - margin-top: .51em; - margin-bottom: .49em; - text-align: justify; - text-indent: 1em; -} - -/* Unindented paragraph */ -.noi { text-indent: 0em; } - -/* Centered unindented paragraph */ -.noic { - text-indent: 0em; - text-align: center; -} - -/* Non-standard paragraph margins */ -.p2 { margin-top: 2em; } -.p4 { margin-top: 4em; } - -/* Horizontal rules */ -hr { - width: 33%; - margin-top: 2em; - margin-bottom: 2em; - margin-left: 33.5%; - margin-right: 33.5%; - clear: both; -} - -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} - -/* Physical book page and line numbers */ -.pagenum { /* uncomment the next line for invisible page numbers */ - /* visibility: hidden; */ - position: absolute; - right: 3%; -/* left: 92%; */ - font-size: x-small; - font-style: normal; - font-weight: normal; - font-variant: normal; - text-align: right; - color: gray; -} /* page numbers */ - -/* Text appearance */ -.smcap {font-variant: small-caps;} - -.oldenglish {font-family: "Old English Text MT", - "Engravers Old English BT", - "Old English", - "Collins Old English", - "New Old English", - serif; -} - -/* Small fonts and lowercase small-caps */ -.smfont { - font-size: .8em; -} - -.tinyfont { - font-size: .65em; -} - -/* Illustration caption */ -.caption { - font-size: .75em; - font-weight: bold; -} - -/* Images */ -img { - max-width: 100%; /* no image to be wider than screen or containing div */ - height: auto; /* keep height in proportion to width */ -} - -.figcenter { - margin: auto; - text-align: center; - page-break-inside: avoid; - max-width: 90%; /* div no wider than screen, even when screen is narrow */ -} - -/* Footnotes and sidenotes */ -.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} - -.footnote .label {position: absolute; right: 84%; text-align: right;} - -.fnanchor { - vertical-align: top; - font-size: .65em; - text-decoration: none; - white-space: nowrap; -} - -/* Transcriber's notes */ -.tnote { - background-color: #E6E6FA; - margin-left: 10%; - margin-right: 10%; - padding-bottom: .5em; - padding-top: .5em; - padding-left: .5em; - padding-right: .5em; -} - -.tntitle { - font-size: 1.25em; - font-weight: bold; - text-align: center; - clear: both; -} - -/* Title page borders and content. */ -.author { - font-size: 1.25em; - text-align: center; - clear: both; -} - - </style> - </head> -<body> - - -<pre> - -The Project Gutenberg EBook of Twenty Unsettled Miles in the Northeast -Boundary, by T. C. Mendenhall - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: Twenty Unsettled Miles in the Northeast Boundary - [From the Report of the Council of the American Antiquarian - Society, presented at the Annual Meeting held in Worcester, - October 21, 1896] - -Author: T. C. Mendenhall - -Release Date: October 12, 2020 [EBook #63443] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK TWENTY UNSETTLED MILES IN *** - - - - -Produced by Donald Cummings and the Online Distributed -Proofreading Team at https://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/American Libraries.) - - - - - - -</pre> - - - -<div class="tnote"> -<p class="noi tntitle">Transcriber’s Note:</p> - -<p class="smfont">This ebook was created in honour of Distributed Proofreaders’ 20th -Anniversary.</p> -</div> - - - - -<hr class="chap" /> -<div class="figcenter" id="cover"> - <img src="images/cover.jpg" alt="cover" title="cover" /> -</div> - - - - -<hr class="chap" /> -<h1>TWENTY UNSETTLED MILES<br /> -<span class="tinyfont">IN THE</span><br /> -NORTHEAST BOUNDARY.</h1> - -<p class="p2 noic">[<span class="smcap">From the Report of the Council of the American Antiquarian Society, -presented at the Annual Meeting held in Worcester, -October 21, 1896.</span>]</p> - -<p class="p4 noi author"><span class="smcap">By T. C. MENDENHALL.</span></p> - -<p class="p4 noic oldenglish">Worcester, Mass., U. S. A.</p> - -<p class="noic">PRESS OF CHARLES HAMILTON.<br /> -<span class="smcap">311 Main Street.</span><br /> -1897.</p> - -<hr class="chap" /> - -<div class="chapter"> -<p><span class="pagenum"><a id="Page_3"></a>[3]</span></p> - -<h2 class="nobreak">TWENTY UNSETTLED MILES IN THE NORTHEAST -BOUNDARY.</h2> -</div> - - -<p>For nearly three hundred years, and almost without cessation, -there has raged a conflict of jurisdiction over territory -lying near to what is known as the Northeast Boundary of -the United States. It has been generally assumed, however, -that the Webster-Ashburton treaty of 1842, together -with the Buchanan-Packenham treaty of 1846, settled all -outstanding differences with Great Britain in the matter of -boundaries, and few people are aware that there is an -important failure in these and earlier treaties, to describe -and define <em>all</em> of the line which extends from ocean to ocean -and fixes the sovereignty of the adjacent territory. From -the mouth of the St. Croix River to the ocean outside -of West Quoddy Head is a distance of about twenty-one -miles, if the most direct route through Lubec Channel -be taken. Somewhere, from the middle of the river at its -mouth to a point in the ocean about midway between the -island of Campobello and Grand Menan, the boundary between -Maine and New Brunswick must go, and, inferentially, -for about one mile of this distance it is tolerably well -fixed. But this is only an inference from the generally -accepted principle that where two nations exercise jurisdiction -on opposite sides of a narrow channel or stream of -water, the boundary line must be found somewhere in that -stream. That this has not been a universally accepted principle, -however, will appear later. Throughout the remaining -twenty miles, the territory under the jurisdiction of the -United States is separated from that under the dominion of<span class="pagenum"><a id="Page_4"></a>[4]</span> -Great Britain by a long, irregularly shaped estuary, almost -everywhere more than a mile in width and over a large part -of its length opening into Passamaquoddy Bay and other -extensive arms of the sea. This large body of water, with -an average depth of twenty-five fathoms and everywhere -navigable for vessels of the largest size, flows with the alternations -of the tides, the rise and fall of which is here eighteen -to twenty feet, now north, now south, with a current in -many places as swift as five and six miles per hour. Nothing -like a distinct channel or “thread of stream” exists, and -it can in no way be likened to or regarded as a river. When -once the mouth of the St. Croix is reached, the boundary -line is defined by the treaty of 1783 to be the middle of -that river, up to its source, but literally, as well as figuratively, -we are at sea as to its location from that point to the -open ocean. It is the purpose of this paper to give some -account of the circumstances which gave rise to such a -curious omission; the incidents which led to a diplomatic -correspondence and convention relating to the matter, in -1892, between the two governments interested; and the -attempt which was made during the two or three years -following the convention to determine and mark the missing -boundary.</p> - -<p>The present controversy really had its beginning nearly -three hundred years ago. Up to the end of the 16th -century, not much attention had been given by European -colonists to the northeastern coast of America, although -it had been visited by Cabot before the beginning of that -century. The coast was tolerably well known, however, -and it had been explored to some extent by both English -and French, who were alive to the importance of -the extensive fishing and other interests which it represented. -In 1603, the King of France (Henry IV.) made -the famous grant to De Monts of all the territory in -America between the fortieth and forty-sixth degrees of -north latitude, thus furnishing a beautiful example of the<span class="pagenum"><a id="Page_5"></a>[5]</span> -definition of a most uncertain quantity in a most certain and -exact manner, an example which later boundary-line makers -might wisely have followed. The Atlantic coast-line -covered by this extensive charter, extends from a point -considerably below Long Island to another point on Cape -Breton Island and includes all of Nova Scotia. In the -spring of 1604, De Monts sailed for his new domain, to -which the name Acadia had been given, carrying with him -Champlain as pilot. After landing on the southern coast of -what is now known as Nova Scotia, he sailed around Cape -Sable to the northward, entered the Bay of Fundy, discovered -and named the St. John River, and afterward entered -Passamaquoddy Bay, and ascended a large river which -came into the bay from the north. A little distance above -its mouth, he found a small island, near the middle of the -stream, which at that point is nearly a mile and a half wide. -As this island appeared easy of defence against the natives, -he determined to make a settlement there, and proceeded -to the erection of buildings, fortifications, <i>etc.</i> A few miles -above the island, the river was divided into two branches -nearly at right angles to the main stream, and the whole so -resembled a cross, that the name “St. Croix” was given -to the new settlement, and the same name came, afterward, -to be applied to the river. The subsequent unhappy fate -of this first attempt to plant the civilization of Europe upon -the northern coast of America is so well known that further -reference is unnecessary. This most interesting spot is -now partly occupied by the United States Government as a -lighthouse reservation, about one-third of the island having -been purchased for that purpose. The St. Croix River -lighthouse, carrying a fixed white and 30-sec. white flashlight -of the fifth order, now stands where in 1605 stood -the stone house and palisade of the dying Frenchmen, -who found in disease a worse enemy than the aborigines. -The area of the whole is only a few acres, and it has -apparently wasted away a good deal since the French<span class="pagenum"><a id="Page_6"></a>[6]</span> -settlement, relics of which are occasionally found even at -this day. The island has borne various names, that first -given having long since attached itself to the river. On -modern Government charts, it is known as Dochet’s Island, -derived, doubtless, from Doucet’s, one of its early names, -but it is, perhaps, more generally known as Neutral Island. -The significance of its discovery and settlement as affecting -the question in hand, will appear later.</p> - -<p>Very shortly after the grant of the French King in 1603, -King James of England issued a charter to all of the territory -in America extending from the Atlantic to the Pacific -Ocean, included between the thirty-fourth and forty-sixth -degrees of north latitude, covering and including the previous -grant of the French King, and thus setting fairly in -motion the game of giving away lands without consideration -of the rights or even claims of others, in which the -crowned heads of Europe delighted to indulge for a century -or more. Colonization was attempted, and now one power, -now another, was in the ascendant. Occasional treaties -in Europe arrested petty warfare on this side, and out of it -all came a general recognition of the St. Croix River as the -boundary between the French possessions and those of the -English. It is impossible and would be improper to go -into these historical details, most of which are so generally -known. It is only important to note that the province -known as Nova Scotia by the one nation, as Acadia by the -other, after various vicissitudes became the property of the -English, and that it was assumed to be separated from the -province of Massachusetts Bay by the river St. Croix.</p> - -<p>While the latter province remained a colony, loyal -to the King, and the former a dominion of the Crown, -there was naturally no dispute over boundary lines. In -the provisional peace treaty of 1782, between the United -States and Great Britain, and in the definitive treaty of -peace in 1783, it is declared that in order that “all disputes -which might arise in future, on the subject of the<span class="pagenum"><a id="Page_7"></a>[7]</span> -boundaries of the said United States may be prevented, it -is hereby agreed and declared that the following are and -shall be their boundaries,” and in this embodiment of -peaceful intent is to be found the origin of international -controversies which lasted more than a half a century, and -which were often provocative of much bitterness on both -sides. The phrase in which reference is made to the line -under consideration is as follows: “East by a line to be -drawn along the middle of the river St. Croix, from its -mouth in the Bay of Fundy to its source.” During the -last days of the Revolutionary War many who had been -loyal to the King during its continuance fled from the -Colonies to Nova Scotia, and naturally they were not much -in favor among those who had risked all in the founding of -a new republic. It was believed by them that the loyalists -were encroaching on the territory rightfully belonging to -the province of Massachusetts, and even before the definitive -treaty of peace had been proclaimed, Congress had -been appealed to to drive them away from their settlement -and claim what was assumed to be the property of the -United States of America. There at once developed what -proved to be one of the most interesting controversies in -the history of boundary lines. It was discovered that -although the St. Croix River had long served as a boundary, -“between nations and individuals,” its actual identity -was unknown. The treaty declared that the line of demarcation -between the two countries should be “drawn along -the middle of the river St. Croix from its mouth in the Bay -of Fundy,” but it was found that there were several rivers -debouching into this bay and that several of them had -been, at one time or another, known as the St. Croix. -In accordance with time-honored diplomatic practice, the -English were for taking the most westerly of all these, and -the Americans contended with much vigor and no small -amount of justice that it was the most easterly. The St. -John, a large river emptying into the Bay of Fundy, had<span class="pagenum"><a id="Page_8"></a>[8]</span> -been so long and so well known that it was out of the question. -There remained three considerable streams, which, -beginning with that farthest east, were known as the -Magaguadavic, or popularly at the present day, the “Magadavy,” -the Passamaquoddy and the Cobscook, all pouring -their waters into the Passamaquoddy Bay.</p> - -<p>In the Grenville-Jay Treaty of 1794, the settling of this -dispute is provided for in an agreement to appoint three -commissioners, one each to be named by the respective -governments and the third to be selected and agreed upon -by these two, whose duty it was to “decide what river is -the river St. Croix intended by the treaty,” and to declare -the same, with particulars as to the latitude and longitude -of its mouth and its source, and the decision of these -commissioners was to be final. In a supplementary treaty -of 1798, this commission was relieved from the duty of -determining latitude and longitude, having, for some reason -or other, found difficulties in the same, or, possibly, recognizing -the absurdity of defining a boundary in two distinct -and independent ways. It was not until 1798 that the -commissioners made their report. As is usual, indeed, -almost universal in diplomatic affairs, it represented a compromise. -There seems to be little doubt that the river -which was called St. Croix at the time of the negotiation of -the treaty of peace in 1783 was really the most easterly -river or the “Magadavy,” this being the testimony of the -commissioners, Adams, Jay and Franklin. But at the -same time it cannot be denied that the stream finally -accepted as the St. Croix was the real river of that name, -referred to in the traditions and treaties of two centuries, -and the discovery of the remains of the French settlement -on Dochet’s Island quieted all doubt in the matter. England -gained a decided advantage by the not-unheard-of -proceeding of adhering to the letter of the treaty rather -than to its spirit.</p> - -<p>But the report of the commission of 1798 fell far short<span class="pagenum"><a id="Page_9"></a>[9]</span> -of terminating the boundary-line controversy. The identity -of the St. Croix River was fixed and its mouth -and source determined, but from the beginning of the -line in the middle of the river there were still twenty -miles before the open ocean was reached. Along this -stretch of almost land-locked water were numerous islands, -several of them large and valuable, and on some of them -important settlements had already been made. The Commissioners -of 1794 were urged to continue the line to the -sea, thus settling the sovereignty of these islands and ending -the dispute. They declined to do so, however, on -account of a lack of jurisdiction, as they believed, and it -was not then thought that these subordinate problems -would be difficult of solution. As a matter of fact, Great -Britain claimed dominion over all of these islands and -exercised authority over most of them, except Moose -Island, upon which was the vigorous American town of -Eastport. A treaty was actually arranged in 1803 between -Lord Hawkesbury and Rufus King in which the question -of the extension of the boundary line to the open sea was -agreed upon and in a most curious way. It was declared -that the boundary line should proceed from the mouth of the -St. Croix and through the middle of the channel between -Deer Island and Moose Island (which was thus held by the -United States) and Campobello Island on the west and -south round the eastern part of Campobello to the Bay of -Fundy. This would apparently give the island of Campobello -to the United States; but it was especially declared -that all islands to the north and east of said boundary, <em>together -with the island of Campobello</em>, should be a part of -the Province of New Brunswick. The curious feature of -this treaty, providing that an island actually included on -the American side of the boundary line should remain in -the possession of Great Britain, resulted from a provision -of the treaty of 1783, which declared that all islands heretofore -under the jurisdiction of Nova Scotia should remain<span class="pagenum"><a id="Page_10"></a>[10]</span> -the property of Great Britain. It is also an admission of -the fact that the <em>natural</em> extension of the boundary line is -around the eastern end of Campobello, as described above; -and while this treaty was never ratified, it is of great -significance as proving the admission on the part of the -English, that the natural boundary would include the island -of Campobello in American territory.</p> - -<p>During the war of 1812 matters remained in <i lang="la" xml:lang="la">statu quo</i>, -and Moose Island (Eastport) continued to be regarded as -American, although Great Britain had yielded nothing of -her claims. Finally, just as peace had been declared, an -armed English force appeared before the town and compelled -its surrender. This was undoubtedly to gain that -possession, which is nine of the ten points, before the meeting -of the Commission at Ghent; and in the discussion -which afterward took place, the British Commissioners -claimed absolute and complete ownership of Moose Island -and others near by. To this the Americans would not -yield; but they finally gave way to the extent of allowing -continued possession until commissioners, to be appointed -under the treaty, could investigate and decide the question. -Thus the boundary line was thrown into the hands of -another commission, which was again unfortunate in not being -clothed with sufficient power to definitely fix it. Indeed, -the importance and desirability of considering the extension -of the boundary line to the sea does not seem to have been -realized, the commissioners being restricted in their duties -to the determination of the sovereignty of the several islands -in Passamaquoddy Bay. The report of this commission -was made in November, 1817. As this decision has a most -important bearing on the matter under consideration, it -will be well to quote its exact language. The Commissioners -agreed “that Moose Island, Dudley Island and Frederick -Island, in the Bay of Passamaquoddy, which is part of -the Bay of Fundy, do and each of them does belong to the -United States of America; and we have also decided, and<span class="pagenum"><a id="Page_11"></a>[11]</span> -do decide, that all other islands and each and every one of -them, in the said Bay of Passamaquoddy, which is a part -of the Bay of Fundy, and the Island of Grand Menan in the -said Bay of Fundy, do belong to his said Britannic Majesty, -in conformity with the true intent of said second -article of said treaty of one thousand seven hundred and -eighty-three.” A very superficial examination of this -decision reveals the possibility of a decided advantage to -Great Britain in consequence of its wording, an advantage -doubtless foreseen and foresought by the more shrewd and -accomplished diplomatists by whom that nation was represented -in this instance, as in almost every other controversy -with this country. Here is a group of scores of -islands, lying in an inland sea, separating the two countries. -It is true that the sovereignty of one or two of the most -important is apparently determined by the treaty of 1783, -but on this the arguments were almost equally strong on -both sides. In any event it would have been easy, and -infinitely better to have drawn a line through the Bay, -from the mouth of the river to the open sea, and to have -declared that all islands on one side of that line should -belong to Great Britain and all on the other side to the -United States. Had this been done, much subsequent -dispute would have been avoided. With much ingenuity, -however (as it seems to me), the American Commission -was induced to accept three islands, definitely named and -pointed out, as their share, while the Englishmen, with -characteristic modesty, contented themselves with everything -left. Of the sovereignty of Moose, Dudley and -Frederick Islands, there was hardly room for discussion, -notwithstanding the three or four years’ occupancy of the -town of Eastport by British troops after the War of 1812. -Our being worsted in the matter, as we unquestionably -were, is to be attributed to the general indifference of the -great majority of our people to the future value of outlying -territory, the resources of which have not yet been<span class="pagenum"><a id="Page_12"></a>[12]</span> -explored. This unfortunate indifference is quite as general -today as it was a century ago, and is in marked contrast -with the policy of our English ancestors.</p> - -<p>It is important to note that this partition of the islands -in Passamaquoddy Bay, unfair as it unquestionably was, -gave no definition of the boundary line from the mouth of -the St. Croix to the sea, except inferentially. In the -absence of description it must be inferred that the boundary -is to be drawn so as to leave on one side all territory -admitted to be American and on the other all admitted to -be British. For a distance of about a half a mile the island -of Campobello lies so close to the American shore that a -channel, known as Lubec Channel, not more than a thousand -feet in width, separates the two countries, and the -thread, or deepest axis of this channel might well define -the boundary. For the remaining score of miles, however, -as has already been explained, the estuary is too wide, its -depth too great and too uniform to afford any physical -delimitation, except that based on equal division of water -areas.</p> - -<p>This ill-defined, or rather undefined boundary line has -so remained for nearly eighty years. It is true that government -chart-makers, both English and American, have -often indicated by dotted lines their own ideas as to its -whereabouts, but they have not been consistent, even with -themselves, except as to making Lubec Channel a part of -it, and they have had no authority except that of tradition. -There has been no small amount of commercial activity -among the settlements on both sides of the Bay, and a considerable -proportion of the population have been, at one -time or another, engaged in fishing. The customs laws of -both countries, and especially the well-established fisheries -regulations of the Canadians, and the activity of their fisheries -police, have led to various assumptions as to the location -of the boundary by one of the interested parties and to -more or less tacit admission by the other. It happens that<span class="pagenum"><a id="Page_13"></a>[13]</span> -the greater part of the best fishing-grounds in the immediate -vicinity of the town of Eastport is distinctly within -Canadian waters, so that most of the trespassing has been -done by the Americans. This has resulted in a great -development of Canadian police activity, which necessarily -implies assumption as to the existence and whereabouts of -the boundary. The continued readiness to claim that -American fishermen were trespassers, accompanied occasionally -by actual arrest and confiscation, naturally led to -a gradual pushing of the assumed boundary towards the -American side; and there is no doubt that during the past -twenty-five years, the people on that side have acquiesced -in an interpretation of the original treaty which was decidedly -unfavorable to their own interests. On the other -hand, from Lubec Channel to the sea, through Quoddy -Roads, a condition of things just the reverse of this seems -to have existed. Here certain fishing-rights and localities -have been stubbornly contended for and successfully held -by Americans, although the territory involved, is, to say -the least, doubtful. In the matter of importation of dutiable -foreign goods into the United States, there existed -for many years an easy liberality among the people whose -occupation at one time was largely that of smuggling, for -which the locality offers so many facilities. It is plain that -this condition of things would give rise to no great anxiety -about the uncertainty of the boundary line, although in one -or two instances the activity (no doubt thought pernicious) -of the Customs officers resulted in disputes as to where the -jurisdiction of one country ended and that of the other -began; and in at least one notable case, to be referred to -at some length later, this question was adjudicated upon -by the United States courts.</p> - -<p>The question was not seriously considered by the two -governments, however, from the time of the treaty of Ghent -to the year 1892. It is not an uncommon belief that this -part of the boundary line was considered in the famous<span class="pagenum"><a id="Page_14"></a>[14]</span> -Webster-Ashburton Treaty of 1842; and many people -have unjustly held Webster responsible for the continued -possession by Great Britain of the island of Campobello, -which, by every rule of physiographic delimitation, ought to -belong to the United States. But, as already recited, the -sovereignty of this island was settled in 1817, and practically -so in the original treaty of 1783. The Webster-Ashburton -Treaty was apparently intended to settle the -last outstanding differences between Great Britain and the -United States in the matter of boundary lines, but disputes -relating to them seem difficult to quiet. The treaty of -1842 carried the line only as far as the Rocky Mountains, -and another in 1846 was necessary for its extension to the -Pacific. Examining both of these in the light of today, -there can be no doubt of the fact that the United States -was seriously at fault in yielding, as she did, her rightful -claims at both ends of the great trans-continental line. -Enormous advantages would be hers today, if she had not -so yielded; and her only excuse is that at the time of -negotiation the territory involved did not seem of material -value, at least when compared with her millions of acres -then undeveloped.</p> - -<p>In all of these controversies nothing was said of the little -stretch of undefined boundary in Passamaquoddy Bay, and -it is quite probable that those who had to do with such -matters were quite unaware of its existence.</p> - -<p>On July 16th, 1891, the Canadian cruiser, <i>Dream</i>, doing -police duty in those waters, seized seven fishing-boats, -owned and operated by citizens of the United States, while -they were engaged in fishing at a point near what is known -as Cochran’s Ledge, in Passamaquoddy Bay, nearly opposite -the city of Eastport, Maine. It was claimed by -Canadian authorities that the crews of these boats were -engaged in taking fish in Canadian waters. On the other -hand, the owners of the boats seized contended that they -were well within the jurisdiction of the United States at<span class="pagenum"><a id="Page_15"></a>[15]</span> -the time of the seizure, and there was much interest in the -controversy which followed. The matter was referred -to the Department of State, where it became evident -that future conflict of authority and jurisdiction could be -avoided only by such a marking of the boundary line -as would make the division of the waters of the Bay -unmistakable.</p> - -<p>Accordingly, in Article II. of the Convention between the -United States and Great Britain, concluded at Washington, -on July 22, 1892, it is agreed that each nation shall appoint -a Commissioner, and that the two shall “determine upon -a method of more accurately marking the boundary line -between the two countries in the waters of Passamaquoddy -Bay in front of and adjacent to Eastport in the State of -Maine, and to place buoys and fix such other boundary -marks as they may deem to be necessary.” The phrasing -of this Convention furnishes in itself, a most excellent example -of how a thing ought not to be done. There is no -doubt that a large majority of the boundary-line disputes -the world over, are due to the use of faulty descriptions -involving hasty and ill-considered phraseology. We are -particularly liable to this sort of thing in the United States, -by reason of the fact that most of our diplomatic affairs are -too often conducted by men of little experience and no -training, and who are unaccustomed to close criticism of the -possible interpretation of phrases and sentences relating to -geographical subjects. A treaty of this kind is usually -satisfactory to both parties when entered into, and it is -only at a later period, when it must be interpreted, that one -or the other of them is likely to find that it is capable of a -rendering and an application very different from what had -been thought of at the time. Innumerable examples of this -looseness of language might be given if necessary, but it is -important to call attention to the inherent weakness of the -document now under consideration. The first phrase, requiring -the commissioners “to determine upon a method of<span class="pagenum"><a id="Page_16"></a>[16]</span> -more accurately marking the boundary line” implies that it -was already marked in some unsatisfactory manner, and it -implies still further, that such a boundary line exists, -neither of which assumptions is correct. As a consequence -of this erroneous hypothesis, the description of the part -of the line to be marked, namely, that in front of and -adjacent to Eastport, is vague and inadequate, and, -indeed, there is nowhere a hint of a recognition of the -real facts.</p> - -<p>Under this convention, Hon. W. F. King, of Ottawa, -Canada, was appointed commissioner on the part of Great -Britain, and the writer of this paper represented the United -States.</p> - -<p>The commissioners were immediately confronted with -the fact that they were expected to mark a boundary line -which really did not exist and never had existed; but by a -liberal interpretation of that part of the convention in which -it was agreed that they were “to place buoys or fix such -other boundary marks as they may determine to be necessary,” -they found a basis on which to proceed to the consideration -of the question. Evidently the just and fair -principle according to which the boundary might be drawn, -was that which, as far as was practicable, left equal water-areas -on both sides. There was no other solution of the -problem clearly indicated by the physics of the estuary or -the topography of the shores. Furthermore, there is a -precedent for adopting this principle, in the treaty of 1846, -in which the extension of the boundary from the point of -intersection of the forty-ninth parallel of north latitude with -the middle of the channel between Vancouver Island and -the Continent, to the Pacific Ocean, is along the middle of -the Strait of Fuca. This was agreed to by both sides; and -also, that the boundary line should consist, in the main, of -straight lines, because of the impossibility of marking a -curved line on the water, or indicating it clearly by shore -signals; that the number of these straight lines should be<span class="pagenum"><a id="Page_17"></a>[17]</span> -as small as possible, consistent with an approximately equal -division of the water area. In view of the great desirability -of fixing the line for the whole distance, from the mouth of -the St. Croix River to West Quoddy Head, the commissioners -tentatively agreed to so interpret the words “adjacent -to Eastport,” as to include the entire twenty miles, -thus hoping to definitely settle a controversy of a hundred -years’ standing. Proceeding on these principles, the whole -line was actually laid down on a large scale chart of the -region at a meeting of the commission, in Washington, in -March, 1893, with the exception of a distance of a little -over half a mile, extending north from a point in the middle -of Lubec Channel. The omission of this part in the Washington -agreement was due to the existence of a small island -about a quarter of a mile from the entrance to the channel, -now known as “Pope’s Folly,” but early in the century -known as “Green” Island and also as “Mark” Island. The -sovereignty of this island has been almost from the beginning -a matter of local dispute. It contains barely an acre of -ground, and except for possible military uses, it has practically -no value. Its location is such, however, as to form a -stumbling block in the way of drawing a boundary line, -which, if laid down with a reasonable regard to the principles -enunciated above, would certainly throw it on the side -of the United States, while a line so drawn as to include it -in Canadian waters would be unscientific and unnatural. -It was agreed to postpone further consideration of this -question until the meeting of the commissioners in the field -for the purpose of actually establishing the line, which -meeting occurred in July, 1893.</p> - -<p>Nearly two months were occupied in the surveys necessary -to the establishment of the ranges agreed upon and in -the erection of the shore signals. It was agreed that the -line should be marked by buoys at the turning-points, but -as the strong tidal currents which there prevail promised to -make it difficult, if not impossible, to hold these in their<span class="pagenum"><a id="Page_18"></a>[18]</span> -places it was determined to mark each straight segment of -the boundary by prominent and lasting range-signals so that -it could be followed without regard to the buoys, and cross-ranges -were also established by means of which the latter -could be easily replaced if carried away. Permanent natural -objects were in a few instances used as range signals, -but for the most part they were stone monuments, conical -in form, solidly built, from five feet to fifteen feet in height, -and painted white whenever their visibility at long range -was thus improved. At the close of the work, first-class -can-buoys were placed at the principal turning-points, although -with little hope of their remaining in place. As a -matter of fact, it was found impossible to keep in place more -than three of the six or seven put down, but, fortunately, -these are at the most important points in the line. As -already stated, the commissioners had failed to agree, in -Washington, as to the direction of the line around Pope’s -Folly Island, and on further investigation of the facts they -were not drawn together on this point. As the work in -the field progressed, other important differences developed -which finally prevented the full accomplishment of the -work for which the commission had been appointed. A -brief discussion of these differences will properly form a -part of this paper.</p> - -<p>As to jurisdiction over Pope’s Folly Island, the claim -of the British Commissioner is, at first blush, the strongest. -It rests upon the report of the commissioners appointed -under the treaty of Ghent for the partition of the islands -in Passamaquoddy Bay. It will be remembered that in -this report three, only, of these islands were declared to -belong to the United States, and Pope’s Folly was not -one of them. As all others were to be the property of -Great Britain it would seem that the sovereignty of this -small island was hers beyond doubt. There is, however, -very distinctly, another aspect of the question. In the -first place, it is highly probable the Commissioners under<span class="pagenum"><a id="Page_19"></a>[19]</span> -the treaty of Ghent restricted their consideration and -action to those islands the domain of which was and had -been actually in dispute. The language of the treaty distinctly -implies this and the language of the report closely -follows that of the treaty. It is true that reference is had -to “the several islands in the Bay of Passamaquoddy, -which is part of the Bay of Fundy,” <i>etc.</i>, but it is further -said that “said islands are claimed as belonging to His -Britannic Majesty, as having been at the time of and previous -to the aforesaid treaty of one thousand seven hundred -and eighty-three, within the limits of the Province of Nova -Scotia”; for by that treaty all of the important islands of -the group would have come to the United States, had not -exception been made of all then or previously belonging to -this province. Obviously, then, the partition commissioners -would consider only those for which such a claim could -be set up. There is also good reason to believe that the -island called Pope’s Folly may not have been considered -by the commission, on account of its trifling importance. -It is a significant fact that there are many other small -islands in the bay, some of them much larger and more -important than this, of which no mention was made by the -commission, yet Great Britain has never claimed or even -suggested that they were rightfully British territory. -Their sovereignty was probably not even thought of by the -commission. In short, a literal interpretation of their -report is not admissible and it has never been so claimed. -Its phraseology is another example of hasty diplomatic -composition, into the acceptance of which the Americans -may have been led by their more skilful opponents.</p> - -<p>At the time this question was under consideration, the -region was sparsely settled, many of the islands having no -inhabitants at all; and the whole dispute was thought, -at least on our side, to be a matter of comparative little -importance. It was natural, therefore, that in selecting -those islands which were to belong to the United States,<span class="pagenum"><a id="Page_20"></a>[20]</span> -only the most important would be thought of, it being -understood that geographical relationship should determine -jurisdiction over many small islands not named and doubtless -not thought worthy of enumerating at that time. But -if it could be shown that the island was at the time of the -treaty of 1783, or had been previously, a dependency of -the Province of Nova Scotia, the claim of the British -Commissioner would be good. On this point I believe the -evidence is entirely with us. It goes to show that so far -as there has been any private ownership of the island it has -been vested in American citizens. At the time of my -investigation, in the summer of 1893, I had the pleasure -of a long interview with the owner of this little island, -Mr. Winslow Bates, who was born in the year 1808, in -which year Pope’s Folly was deeded to his father by one -Zeba Pope. A copy of this deed I obtained from the -records at Machias, but I was unable to find any trace of -an earlier proprietor than Mr. Pope. It was deeded to -Mr. Bates under the name of “Little Green Island”; but -there is evidence that Pope had erected upon it a house and -a wharf, the uselessness of which had suggested to his -neighbors the name by which it is now known. Bates, the -father of my informant, continued in peaceful possession of -the island until the British forces came into control at -Eastport at the close of the war of 1812. In August, -1814, David Owen, of Campobello, posted a placard -proclamation in the town of Eastport, announcing his -assertion of ownership of this island. It was hardly -posted, however, before it was torn down by an indignant -American patriot, probably Elias Bates himself, for it is -now in the possession of Mr. Winslow Bates. It shows -the holes made by the tacks by which it was originally -held and is a curious and valuable relic of those troublesome -days in the history of Eastport. Backed by the -British army, Owen took forcible possession of the island -and removed the buildings to Campobello. The American<span class="pagenum"><a id="Page_21"></a>[21]</span> -owner, Bates, procured a writ for the arrest of Owen, -claiming damages to the extent of $2,000. The writ -was never served, as Owen was careful never to come -within the jurisdiction of the Court, after the withdrawal -of the British troops. After this it was in the continued -occupancy of Americans; Bates pastured sheep on it, and -Canadians who had attempted to erect a weir at the east -end of the island were prevented from doing so by a -warning from Winslow Bates, and did not further assert -their claim. The island was incorporated into the town -of Eastport, and when that town was divided it was -included in that part known as Lubec. As long ago as -1823, the sovereignty of the island was adjudicated upon -by the American courts, on the occasion of the confiscation -near its shore, of “sundry barrels of rum” by alert -Customs officers. Judge Ware made an elaborate decision, -in which the whole case was admirably presented.<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a></p> - -<div class="footnote"> - -<p class="noi"><a id="Footnote_1" href="#FNanchor_1" class="label">[1]</a> Ware’s Reports, 1823.</p> - -</div> - -<p>His construction of the Report of the Commission was -“that it assigns to each party a title according to its -possession, as it was held in 1812,” and he finds that the -island is within the domain of the United States.</p> - -<p>If further evidence were necessary, it could be found in -the early cartography of this region.</p> - -<p>In a map entitled “A Map of Campobello and other -Islands in the Province of New Brunswick, the property of -Will Owen, Esq., sole surviving grantee, <i>etc.</i>, drawn by -John Wilkinson, Agt., to Wm. Owen Esq., Campobello, -30th September, 1830,” there is drawn a broken straight -line extending from the southern end of Deer Island to the -eastern point of Lubec Neck, which line is designated -“Filium Aquae” which must be interpreted as meaning -water line or boundary. Pope’s Folly is on the American -side of this line. Moreover, it is an historical fact that -English and American vessels formerly exchanged cargoes<span class="pagenum"><a id="Page_22"></a>[22]</span> -on such a line, not far from Eastport, which was assumed -to be the boundary line. A British Admiral’s chart of that -region, dated 1848, shows a dotted line intended to represent -the boundary, which runs to the eastward of Pope’s -Folly. Moreover, the principal ship channel is between -the island and Campobello.</p> - -<p>In the light of all of this evidence, and more of a similar -character, it seems unreasonable to suppose that the Commission -under the treaty of 1814 ever intended this island -to be included in the general declaration “all other islands -shall belong to His Britannic Majesty.” According to all -recognized geographical principles, to traditional ownership -and continued possession, and to early and authoritative -maps and charts, it is a part of the State of Maine. To -deflect the boundary line so as to bring the island under -British control, would distort it to an unreasonable degree, -and would result in greatly increased difficulty and confusion -in the administration of customs laws and regulations. -Against all of this the British Commission could -only set up a literal interpretation of the report of the -Commissioners under the treaty of Ghent, to which the -representative of the United States felt compelled to refuse -assent.</p> - -<p>Another difference of opinion, almost trivial in magnitude -but suggestive in character, arose as soon as the range-marks -defining the line as agreed upon in Washington had -been actually located on the ground. Nearly opposite the -city of Eastport there is rather a sharp change in the direction -of this line, amounting to about 57° 25′. It was discovered -that there was included in the angle at this point, -on the side towards the United States, the better part of a -shoal known as Cochran’s Ledge, a locality much frequented -by fishermen, and, indeed, the very spot on which -the American fishermen had been arrested by the Canadian -police in 1891. The result of this discovery was that the -commissioner representing Canadian interests declared his<span class="pagenum"><a id="Page_23"></a>[23]</span> -unwillingness to agree to the line as laid down at this -point, and desired to introduce a new short line cutting -off this angle so as to throw the ledge into Canadian -waters.</p> - -<p>In some measure growing out of this controversy was a -third, relating to the line from Lubec Channel to the sea. -For about half of this distance the channel now and for -many years in use is a dredged channel, created and maintained -at the expense of the United States. Through this -it was proposed and agreed at Washington to run the -boundary line. Previous to the making of this there was -a more or less complete and satisfactory natural channel, -through which all vessels passed. It was crooked, -and was, for the most part, much nearer the Canadian -shore than the present channel. It has now largely filled -up and disappeared; the principal current having been -diverted into the new channel. In running the boundary -line through the latter a much more even and, in -the judgment of the American Commissioner, a much -more just division of the water area was secured, but -it was discovered to have the locally serious disadvantage -of throwing to the Canadian side certain fishing weirs -which had been maintained practically in the same spot for -many years and which were mostly owned and operated by -American citizens, resident in the town of Lubec. It is -true, as suggested in an earlier part of this paper, that -their continued occupation had been stoutly resisted by the -Canadians, and serious conflict had once or twice arisen. -There was, of course, a certain amount of reason in demanding -a line following the old channel, which undoubtedly -was the only channel, when the original treaty was made. -Adherence to the well-founded principle of equal division -of water areas, however, was thought to be wiser and more -just by the representative of the United States, even if it -required the surrender of a few comparatively valueless -fishing-privileges, the right to which was of very doubtful<span class="pagenum"><a id="Page_24"></a>[24]</span> -origin. Those who thought they would suffer in this way -made strong appeals to the Department of State and a -claim for the old channel was afterwards embodied in the -propositions made by the United States.</p> - -<p>The differences between the Commissioners regarding the -three points above referred to were the only differences that -were at all serious, and these, it is believed, might have -been removed had they enjoyed absolute freedom and full -power of adjustment. Thus restricted, the Commissioners -could not and did not come to an agreement. At their -meeting on December 30th, 1894, the American Commissioner -submitted three propositions, to any one of which -he was willing to subscribe. The first proposed the entire -line as originally laid down in Washington, with an additional -section throwing Pope’s Folly Island into the United -States; the second suggested a literal interpretation of the -Convention of July 22nd, 1892, restricting the marking to -three lines “in front of and adjacent to Eastport”; the third -recommended an agreement on portions of the line, with -alternative propositions as to Pope’s Folly and Lubec -Channel, to be afterwards determined by such methods as -the two governments might agree upon. None of these -was acceptable to the British Commissioner and in turn he -submitted five propositions, none of which was satisfactory -to the representative of the United States. They all -involved non-action as to Pope’s Folly Island, but included -action favorable to Canadian interests below Lubec.</p> - -<p>At the last meeting, in April, 1895, it was finally agreed -to disagree, and the preparation of a joint report, setting -forth the principal lines of agreement and disagreement -was undertaken. It was at last resolved, however, to -report separately, and a full and detailed report of all -operations was made by the American Commissioner and -submitted to the Department of State.</p> - -<p>What was actually accomplished by this joint Commission -was the laying out in Washington of a rational<span class="pagenum"><a id="Page_25"></a>[25]</span> -boundary line, extending over the entire twenty miles of -undetermined boundary, and the actual erection on the -ground of range-signals and monuments indicating this line. -These still remain and, as a matter of fact, are quite generally -accepted as authoritative in the immediate vicinity, -thus making it every day easier for a future convention to -fix definitely the direction of the boundary and thus quiet a -dispute which has already continued a century longer than -was necessary.</p> - -<div class="figcenter"> - <img src="images/i_map01.jpg" alt="" title="" /> - <br /> - <div class="caption">Sketch Map of Passamaquoddy Bay showing proposed Boundary with alternate lines -below and above Lubec.</div> -</div> - - - - -<hr class="chap" /> -<div class="tnote"> -<p class="noi tntitle">Transcriber’s Note:</p> - -<p class="smfont">Variations in hyphenation and compound words have been preserved.</p> -</div> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of Twenty Unsettled Miles in the -Northeast Boundary, by T. 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