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

[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.