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vO / / %' 4Q66( OF CON(. , w TWENTY UNSETTLED MILES IN THE NORTHEAST BOUNDAUY. \ Fou nearly three hundred years, and almost without cessa- tion, 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, how- ever, 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 be- tween Maine and New Brunswick must go, and, infercn- tially, for about one mile of this distance it is t^i rably well fixed. But this is only an inference from ttic ^||:ene^ally accepted principle that where two nations exercise jurisdic- tion 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 prin- ciple, however, will appear later. Throughout the remain- ing twenty miles, the territory under the jurisdiction of the United States is separated from that under thp dominion of Groat Britain by a long, irregularly ahapcd estuary, almost every wljero more than a mile in width and over a largo 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 twonty-Hve fathoms and everywhere navigable for vessels of the largest size, flows with the alter- nations of the tides, the rise and fall of which is here eight- een to twenty feet, now north, now south, with a current in many places as swift as five and six miles per hour. Noth- ing 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 figura- tively, 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 miss- ing 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 coapt was tolerably well known, however, and it had been explored to some extent by both Eng- lish and French, who were alive to the importance of the extensive fishing and other interests which it repre- sented 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 n most uncertain quantity in n most certain and exact manner, an example wliich later l)oundary-lino nialc- ors might wi8cly liavo followed. The Atlantic coast-line covered l>y (his extensive charter, extends from a point considerably liolow Long Island to another point on Cape Breton Island and includes all of Nova Scotia. In the spring of 1004, De Monts sailed for his now 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 Scolia, ho sailed around Cape Sable to (he northward, entered the Bay of Fundy, discov- ered 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 (he 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 bo applied to the river. The subsequent unhapi>y fate of this first attempt to plant the civilization of Europe upon the northern coast of America is so woll known that further reference is unnecessary. This most interesting spot is now partly occupied l)y the United States Government as a lighthouse reservation, about one-third of the island hav- ing been purchased for (hat purpose. The St. Croix River lighthouse, carrying a fixed white and dO-sec. white flash- light of the fifth order, now stands whore 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 I \ sottlomcnt, relicH of which are occasionally found even at this (lay. Tho JBhind has horno various names, that first given having long since attached itself to the river. On modern Government charts, it is lon it a house and a wharf, tho usclcssncss of which had suggested to his neighbors tho name by which it is now known. Bates, the father of my informant, continued in peaceful possession of tho inland until tho British forces came into control at Enstport ut tho close of tho war of 1812. In August, 1814, David Owen, of Campobello, posted n placard proclamation in tho town of Eastport, announcing his assertion of ownership of this island. It Avas hardly posted, however, before it was torn down by an indignant American patriot, probably Elias Bates hitnself, for it is now in tho possession of Mr. Winslow Bates. It shows tho holes made by the tacks by which it was originally bold and is a curious and valuable rolic of thoso Iroublu- somo days in tho history of Eastport. 'Backed by tho British army, Owen took forcible possession of tho island and removed tho buildings to Campobello. Tho American II -! owner, Batofl, procured n wri» for the nrrcst of Owen, claiming tlamngcs to the exlcn* of $2,000. The writ wn« never served, ns Owon was c«roful never to cotno witliin the jurisdic 'ion of tliu (;ourt, after the withdrowal of tlio UriliHli troops. After this it wns in the continued occupancy of Americans ; Batca pastured shcop on it, and Canadians who had attempted to erect a weir at the oast end of tlio island wore prevented from doing so by a warning from Wlnslow Bates, and did not furtiicr 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 Luboc. As long ago as 1823, the sovereignty of the island was adjudicated upon by the American courts, on the occasion of the confisca- tion near its shore, of "sundry barrels of rum" by olort Customs officers. Judge Ware made an elalwrato decision, in which the whole case was admirably presented.' 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 ho finds that the island is within tho domain of the United States. If further ovidenco wero necessary, it could be found in tho early cartography of this region. In a map entitled "A Map of Campobello and other Islands in the Province of Now Brunswick, the property of Will Owen, Esq., solo surviving grantee, etc., drawn by JoImi Wilkinson, Agt., to Wm. Owen Esq., Campobello, 30th September, 1830," there is drawn a broken straight line extending from tho southern end of Deer Island to tho eastern point of LuImjc Nock, which lino is designated " Fllium Aquoo" which must bo interpreted as meaning water lino or boundary. Pope's Folly is on tho American side of this line. Moreover, it is an hislurlcul fact that English and American vessels formerly exchanged cnrgoes 1 Wurc'8 Reports, 1823. \ 22 I on such u 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 repre- sent the boundary, which runs to the eastward of Pope's Folly. Moreover, the principal ship channel is between the island and Canipobello. In the light of all of this evidence, and more of a similar character, it seems unreasonable to suppose that the Com- mission under the treaty of 1814 ever intended this island to bo 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 diflSculty and con- fusion in the administration of customs laws and regula- tions. 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 direc- tion of this line, amounting to about 57° 25'. It was dis- covered that there wos 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 fre- quented 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 28 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 main- tained 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 ard satisfactory natural chan- nel, through which all vesseh passed. It was crooked, and was, for the most pail, 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 bound- ary 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 sanjo 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 de- manding 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 bo 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 24 origin. Those who thought they would suffer in this way made strong appeals to the Departnacnt 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 Commis- sioner submitted three propositions, to any one of which ho was willing to subscribe. The first proposed the entire line as originally laid down in Washington, with an addi- tional 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" ; tlio 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 goveinmoiits 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 Com- mission was the laying out in Washington of a rational nnnii^iify. 1 this way ito and a C(1 in the irding the enccs that ight have 1 and full nissioncrs At their Coinmis- of which tlie entire nn addi- le United on of the nrking to tlic third lino, with d Lubec cthods ns of these 1 turn he lisfactory rhey all included \ y agreed t, sotting ^reemcnt 'ever, to rt of all oner and it Corn- rational 5T ^UOOOY Mt*0 Sketch Map of Passamaquoddy Bay showing proposed Boundary with alternate lines below and above Lubec. I I i|iiiWiCiiL'Bilift.'JU'i.""""<" 25 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 Ime. These still remain and, as a matter of fact, are quite gen- erally 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.