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 Thomas C. Mendenhall

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.