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                        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.]

                         By T. C. MENDENHALL.


                      Worcester, Mass., U. S. A.
                      PRESS OF CHARLES HAMILTON.
                           311 MAIN STREET.
                                 1897.




TWENTY UNSETTLED MILES IN THE NORTHEAST BOUNDARY.


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 _all_ 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 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.

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 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, _etc._ 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
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.

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.

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 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 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.

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.

But the report of the commission of 1798 fell far short 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, _together with the island of
Campobello_, 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 the property of Great Britain. It is also
an admission of the fact that the _natural_ 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.

During the war of 1812 matters remained in _statu quo_, 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 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 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.

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.

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 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.

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 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.

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.

On July 16th, 1891, the Canadian cruiser, _Dream_, 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 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.

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 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.

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.

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 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.

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 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.

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 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,” _etc._, 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.

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,
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
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.[1]

[1] Ware’s Reports, 1823.

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.

If further evidence were necessary, it could be found in the early
cartography of this region.

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, _etc._, 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 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.

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.

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
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.

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 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.

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.

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.

What was actually accomplished by this joint Commission was the laying
out in Washington of a rational 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.

[Illustration: Sketch Map of Passamaquoddy Bay showing proposed
Boundary with alternate lines below and above Lubec.]




 Transcriber’s Notes:

 ――Text in italics is enclosed by underscores (_italics_).

 ――Variations in hyphenation and compound words have been preserved.