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]