Part 2

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.

Transcriber’s Notes:

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

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