USA > Maine > Piscataquis County > Historical collections of Piscataquis County, Maine, consisting of papers read at meetings of Piscataquis County Historical Society, also The north eastern boundary controversy and the Aroostook War, V. I > Part 16
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tude, passes along the Highlands which divide the rivers that empty themselves into the said river St. Lawrence from those which fall into the sea, and also along the north coast of the Bay des Chaleurs and the Coast of the Gulf of St. Lawrence, to Cape Rosiers; and from thence, crossing the mouth of the river St. Lawrence, by the west end of the island of Anticosti, terminates at the aforesaid river St. John."
The Highlands designated above were thus assigned as the southern boundary of the province of Quebec and became the northern boundary of Nova Scotia; the northwest corner of which, instead of being, as hereto- fore, on the banks of the St. Lawrence, was thereby placed on the Highlands.
This boundary of the Province of Quebec was again ratified by the British government by the act of Parlia- ment of the 14th, Geo. III, Chap. 83, (1774) commonly called the Quebec Act.
The treaty of peace between the Colonies and England at the close of the war of the Revolution and known in history as the treaty of 1783, provides-"And that all disputes, which might arise in the 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, viz: From the northwest angle of Nova Scotia, viz: that angle which is formed by a line drawn due north from the source of the St. Croix River, to the Highlands, which divide those rivers, that empty themselves into the river St. Lawrence from those which fall into the Atlantic Ocean, to the northwesternmost head of Connecticut River; 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; and from its source, directly north, to the aforesaid Highlands, which divide the rivers which fall
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into the Atlantic Ocean from those that fall into the river St. Lawrence."
Subsequent to this treaty doubts arose as to which was the St. Croix River, and commissioners were appointed under the provisions of its fifth article who declared October 25, 1798, that a river called "Scoodiac, " and the northern branch of it (called "Cheputnaticook") to be the true river St. Croix as intended by the treaty, that its mouth was in the Bay of Passamaquoddy at a place called Joe's Point, and its source at the northern- most head spring of the northern branch aforesaid.
During the War of 1812 the British seized and held Moose Island on which the city of Eastport now stands, and at the treaty of Ghent they refused to restore it.
It was generally stipulated that all territory, places, and possessions taken by either party during the war should be restored, and it was specially provided that such of the islands in Passamaquoddy Bay as were claimed by both parties, should remain in the possession of the party in whose occupation they might be at the time of the exchange or the ratification of the treaty, without prejudice to either party, till the question of title should be settled. For such a settlement Art. IV provided that the question should be referred to two commis- sioners to be appointed by the two governments.
The King of Great Britain appointed Thomas Barclay and President Madison appointed John Holmes, who was a resident of the Province or District of Maine.
Their decision, which was rendered November 24, 1817, seems to have been acquiesced in by all parties and with a few exceptions I do not find that it was very seriously criticised by the writers at that time. *
*The first question that arose before these commissioners was, which of the three rivers falling into the Bay of Fundy was the St. Croix contemplated by the treaty of 1783.
[OVER]
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It was well understood by both governments that the boundary line of Nova Scotia was left very indefinite by the treaty of 1783, but as there were but few settlers on the disputed territory and but little business or com- merce, and as both nations were engrossed in struggles with each other of more consequence, there was but little controversy about it.
The fact was, however, recognized by the treaty of Ghent (1814) and they made provision for its adjustment
These rivers had all been known and described at various times by the name of St. Croix. The most easterly had likewise been called the Magaquadavic; the intermediate, the Schoodic; the most west- erly, the Cobscook.
The decision of the commissioners was that the middle river, known sometimes as the Schoodic, was the true St. Croix River. It having been thus fixed, it was so regarded by both governments, at the treaty of Ghent, and in the proceedings when the whole matter was finally adjusted by the Webster-Ashburton treaty.
It has, however, been the opinion of students of history who have since investigated the subject, that a grave error was committed, by which the American government, and ultimately the State of Maine, were grossly wronged, that if the subject had been properly con- sidered and fairly adjudicated, the easterly river, rather than the Schoodic or the intermediate river, would have been the easterly boundary of the State of Maine.
Probably no man in the days of this controversy gave the subject more consideration than the late Col. John G. Deane of Portland, and formerly of Ellsworth. He was a leading member of the Legis- lature during that time and was the author of several official reports relating to the North Eastern Boundary, and he was firmly con- vinced that the commissioners selected the wrong river for the St. Croix.
By this blunder, if such it were, Col. Deane estimated that the State of Maine "lost a strip of territory from fifteen to twenty miles in breadth, and one hundred and seventy-five miles in length."
(See a sketch of the life of John G. Deane, Maine Hist. Coll. 2d Series, Vol. 1, p. 179. "The North Eastern Boundary," by Israel Washburn, Jr., read before the Maine Historical Society, May 15, 1879. )
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by the fifth article of this treaty, a part of which is as follows :
"Whereas neither that point of the Highlands lying due north from the source of the River St. Croix, and designated in the former treaty of Peace between the two Powers, as the north-west angle of Nova Scotia, nor the north-western most head of the Connecticut River, has yet been ascertained; and whereas that part of the boundary line between the Dominions of the two Powers, which extends from the source of the River St. Croix, directly north, to the above-mentioned north-west angle of Nova Scotia; thence, along the said Highlands which divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, to the north-western most head of Connecticut River; thence, down along the middle of that river, to the forty-fifth degree of north latitude; thence, by a line due west, on said latitude, until it strikes the River Iroquois or Cataraquy, has not yet been surveyed; it is agreed that for those several purposes, two Commissioners shall be appointed, sworn and authorized to act, &c. The said Commissioners shall have power to ascertain and determine the points above mentioned, in conformity with the provisions of the said treaty of Peace of 1783, and shall cause the boundary aforesaid, from the source of the River St. Croix to the River Iroquois or Cataraquy, to be surveyed and marked according to the said provisions. The said Commission- ers shall make a map of the said boundary and annex to it a declaration under their hands and seals, certifying it to be the true map of the said boundary, and particular- izing the latitude and longitude of the north-west angle of Nova Scotia, of the north-western most head of Con- necticut River, and of such other points of the said boundary as they may deem proper .. And both parties
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agree to consider such map and declaration as finally and conclusively fixing the said boundary."
The same article further provided for a reference to a friendly sovereign or state, in the event of the commis- sioners being unable to agree.
The two governments appointed commissioners con- formitory with this provision, namely, George III appointed on the part of Great Britain, Thomas Barclay, September 4, 1815, and President Madison appointed Cornelius Van Ness, April 3, 1816. Mr. Van Ness was a native of New York but at the time of his appoint- ment resided in Vermont, and it appears that John Holmes, who was one of the commissioners to adjudicate in regard to the titles of the islands in Passamaquoddy Bay, also acted with them. Henry H. Orne was appointed secretary to this commission. Mr. Orne, who in the record was simply described as "a citizen of the United States," was presumably Judge Henry Orne of Boston, from whom the town of Orneville in the county of Piscataquis derived its name.
This commission, after sitting for five years, could not even agree on a plan for a general map of the country exhibiting the boundaries respectively claimed by each party ; much less could they settle any of the matters referred to them.
They accordingly dissolved and made separate reports to both governments, stating the points on which they differed, and the grounds of their difference.
Soon after the close of the War of 1812, settlements, not only in the northeastern parts of the Province of Maine, but in Nova Scotia and Quebec as well, began to increase; business was expanding and land under both flags was becoming more valuable.
All of these things tended to reawaken the interest in
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the question of boundary lines between the two dominions.
Maine became a state in 1820, and by the Articles of Separation the Commonwealth of Massachusetts re- served to herself one half of the unincorporated lands within the Province of Maine. *
Hence not only the inhabitants of eastern Maine, but both of these states were intensely interested in having the matter decided.
Finally the statesmen of both governments concluded that a condition had arisen which made it necessary to refer the points of difference to a friendly sovereign under the terms of the treaty of Ghent; and on the 29th day of September, 1827, a convention to that effect was con- cluded.
Consequently in 1826, Albert Gallatin, who was one of the commissioners of the United States at Ghent in 1814, went to England as minister of the United States, charged with the duty of arranging various questions of difference and among them the North Eastern Boundary. He had many conferences with the plenipotentiaries rep- resenting that government, the principal result of which was the convention to refer the matter to a friendly sovereign under the provision of the treaty of Ghent herein before referred to.
The statements of the United States were prepared and submitted to the arbitrator by Mr. Gallatin who had associated with him Wm. Pitt Preble of Portland.
*Act of Separation passed by Legislature of Massachusetts June 19, 1819, Sec. 1, part first.
+William, P. Preble was a resident of Portland and was born in York, Me., November 27, 1783, and died October 11, 1857. He was graduated from Harvard College in 1806, studied law with Benjamin Hasey at Topsham and Mr. Orr in Brunswick. Practiced law in Alfred and Saco before he removed to Portland in 1818. In 1814 he
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It was stipulated therein that Mitchell's map, by which the framers of the treaty of 1783 had regulated their joint and official proceedings, and a map denomi- nated A, had been agreed upon by the contracting parties, as a delineation of the water courses and a general outline of the territory.
The King of the Netherlands was selected as arbiter and when he heard the case of the high contracting parties, changes of magnitude had taken place in both the American and English possessions since the treaty of 1783.
The Province of Maine was independent from the mother Commonwealth of Massachusetts and had entered upon her career as a sovereign state of the Union.
Nova Scotia had been divided and a new province erected called New Brunswick, within the borders of which was the territory about which the contention had arisen, and Quebec had been made into two provinces, then known as Upper Canada and Lower Canada.
The task imposed upon the arbiter was an onerous one but the duties were plain and not at all obscure.
He was to construe the provisions of the treaty of 1783, which related to this boundary, and make a deci- sion which, if ratified by the two governments, would be binding upon them.
This necessitated his making findings among other things as to the following questions :
received the appointment of U. S. District Attorney from President Madison.
In 1820 he was selected as one of the three judges composing the highest judicial court of the new State of Maine.
In 1828 he resigned from the bench and entered upon diplomatic service.
President Jackson appointed him Minister Plenipotentiary to The Hague, and he was serving in this capacity when the King of Hol- land rendered his decision. He was in various ways active in the affairs of the North Eastern Boundary question until its final settle- ment by the Webster-Ashburton treaty.
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1. What was the "north-west angle of Nova Scotia?"
2. The "Source" of the St. Croix River?
3. What were the "Highlands," which "divide those rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean?"
4. What was the "Northwesternmost head of the Connecticut River?"
Incidental with, or subordinate to these were other questions which arose in the investigations and discus- sions as the case progressed before him, but I regard the foregoing as the principal or leading points in the con- troversy.
It was undoubtedly unfortunate for all parties to this imbroglio, that, in designating the northerly boundary between the territory of Massachusetts (Province of Maine) and Nova Scotia, in the treaty of 1783, the term "Highlands" should have been used. It was indefinite and susceptible of widely different construction. No writer has since maintained or even insinuated that the word was placed there by either party designedly or for any ulterior purpose.
It was without doubt, purely and simply, a case of careless and inconsiderate use of language. It should be observed that this word was not used in these treaties except in the sense of dividing rivers, and that in the early grants the intention of making the St. Lawrence River the northerly boundary of Maine seemed to be apparent.
This was the position taken by the American commis- sioners before the King of the Netherlands, and it was furthermore contended by them that, taking the whole article together, the word "Highlands" as therein expressed, referred to an unexplored country and was applicable to any ground, whatever might be its nature or elevation, along which the line dividing the rivers
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should be found to pass; and that the fact that the ground dividing rivers was necessarily more elevated than those rivers and their banks, was sufficient to entitle it to the designation of "Highlands" in relation to those rivers.
The United States claimed that a line from the source of the river St. Croix "directly north" reaches a ridge or "Highland" which divides tributary streams of the St. John River, which falls into the Bay of Fundy, from the waters of the Ristigouche River, which falls through the Bay des Chaleurs, into the Gulf of St. Lawrence; that this line crosses no other rivers for a distance exceeding ninety miles, but tributary streams of the St. John and that river itself. And furthermore that it was not necessary to find any continuous range of mountains, but continuous land which divided these rivers.
To be exact I copy the following from Gallatin's notes on the "American line" (page 17) which he compiled from the statements laid before the King of the Nether- lands :
"At about ninety-seven miles from the source of the River St. Croix, the due north line reaches a ridge or Highland which divides tributary streams of the River St. John, which falls into the Bay of Fundy, from the waters of the River Ristigouche, which falls through the Bay des Chaleurs, into the Gulf of St. Lawrence. And, in its further north course, the said line, after crossing several upper branches of the River Ristigouche, reaches, at the distance of about 140 miles from the source of the River St. Croix the Highlands, which divide the waters of the said River Ristigouche from the tributary streams of the River Metis, which falls into the River St. Lawrence. It is clear that there is no other possible choice but between those two places, and that the north-
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west angle of Nova Scotia must, of necessity, be found at the intersection of the said due north line with, either the Highlands which divide the waters of the River St. John from those of the River Ristigouche, or the High- lands which divide the waters of the River Ristigouche from those of the River Metis; since there is no other point, through the whole course of the due north line, which divides any other waters but such as empty them- selves into the same river.
"The selection between those two dividing Highlands evidently depends on what is meant, according to the treaty of 1783, by rivers that empty themselves or fall into the River St. Lawrence, and by rivers which fall into the Atlantic Ocean.
"The treaty recognizes but two classes of rivers. The first class embraces only the rivers falling into a river, designated by its specific name, and cannot be construed to include any rivers that do not empty themselves into the river thus specially designated. All the rivers, met by the due north line, which do not actually empty themselves into the River St. Lawrence, according to its known limits, are, by the treaty, considered as falling into the Atlantic Ocean."
The British theory from first to last was that "High- lands" represented a mountainous or hilly country or district.
They would not admit its American significance as a continuous line dividing rivers regardless of whether such line was mountainous or not.
There may have been some reason for this as they had been familiar with the term as applied to a region of Highlands in Scotland which distinguished it from the Lowlands, Etc.
Their writers from time immemorial had thus described sections which were of high elevation and had not gener-
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ally used the word in the American sense as a dividing line, a ridge or a range.
In the same notes (page 18) Mr. Gallatin says :
"It is denied on the part of Great Britain, that the boundary thus claimed by the United States, is that which is prescribed or intended by the treaty principally, if not exclusively, on two grounds :
"Ist. That the Bay of Fundy, as mentioned in the treaty of 1783, is, (as well as the Gulf of St. Law- rence, ) intended to be separate and distinct from the Atlantic Ocean; and that the River St. John, which falls into the Bay of Fundy, (as well as the River Ristigouche which, through the Bay des Chaleurs, falls into the Gulf of St. Lawrence, ) is intended, on that as well as on separate grounds, to be excepted from that class of rivers which are described in the treaty as falling into the Atlantic Ocean.
"2ndly. That the ground over which the boundary line claimed by the United States does pass, has neither the mountainous character, nor the continuous . elevation necessary to entitle it to the designation of 'High- lands,' as intended by the treaty; and therefore, that the Highlands, claimed on the part of the United States, conform neither in position or character, to the conditions imposed on them by the treaty.
"From those premises, and with reference particularly to the assertion, that the River St. John must be excepted from that class of rivers described in the treaty as falling into the Atlantic Ocean, it is inferred, on the part of Great Britain, that, consequently the Highlands described in the treaty must lie to the southward of that River. And it is further affirmed, that the Highlands, claimed, on the part of Great Britain, as those desig- nated in the treaty of 1783, conform, in every particu- lar, to the conditions imposed on them by that treaty."
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The north line would terminate at Mars Hill as the British construed the treaty, while under the American construction it would run as far north as the sources of the Ristigouche River, which empties into the Bay des Chaleurs.
The St. John River was midway between the two lines, or in about the central part of the disputed terri- tory.
Had the British claim prevailed, all of what is now Aroostook County, north of Mars Hill, and the most of what is now Piscataquis County, northerly of the Penob- scot waters, would be a part of Canada; and if the Americans had finally been sustained in all that they con- tended for, the rich St. John River valley and a large stretch of territory northerly, easterly and northwesterly would now be a part of the State of Maine.
For the purpose of this sketch it is not necessary to consider the numerous subjects which were involved when the case was tried out before the arbiter. Thirty or more maps published in London subsequent to the proc- lamation of 1763, were among the exhibits placed before him by the United States, eighteen of which were pub- lished before the treaty of 1783.
The English made the point that the negotiators of the treaty of 1783 had no evidence before them of the actual geography of the country, and hence the words of the treaty were not effectual, and yet these last-named eighteen maps all made plain the situation of the basin of the St. John, the sources of the Penobscot, which were rivers and streams falling into the Atlantic, and those of the tributary streams of the St. Lawrence.
The negotiators of that treaty had access to these maps and made use of them, consequently the Americans contended that the highland or ridge of land which divided these tributary streams, was the "Highlands"
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described in the treaty, and that it constituted a well- defined boundary line which could be found upon the face of the earth, and that there was no reason whatever for assuming that when those words were mutually written into the treaty their significance and meaning were not fully understood.
It would seem that the gist of the entire issue before the King of the Netherlands was, what were the inten- tions of the negotiators of the treaty of 1783, and it is difficult to perceive just how any acts of jurisdiction subsequently exercised by either party over the contested territory, could have thrown any light on these inten- tions or affected in any manner the terms of the treaty.
And yet both sides were allowed to and did present evidence of this nature, some of which is interesting even though its materiality at that time may be doubted.
It appeared that in the year 1784, a native Indian was tried and convicted by a court of the Province of Quebec, and accordingly executed for a murder com- mitted, as was suggested, on the waters of the river St. John ; that between the years, 1789 and 1791, two suits were instituted and judgment obtained, before the courts of Quebec by some inhabitants of Canada against persons residing on the river Madawaska; that an extract from a list of the parishes in the Province of Quebec, taken from the minutes of the Executive Council for 1791, includes that of Madawaska,* and that, in the year
*A part of the disputed territory was during the entire contro- versy over the North Eastern Boundary, known as Madawaska. Upon a part of this is now situated the town of Madawaska in the State of Maine. This territory was anciently called the Fief of Madawaska; the original concession of it having been made by the Government of Canada to the children of the Sieur Charles Auburt de la Chenaye, November 25, 1683. This concession contained the following condition :
"Subject to the Foi et hommage, which the grantees, their heirs
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1785, that council issued an order for opening a road from Kamarouska on the river St. Lawrence to Lake Temisquata, which lies on the southeastern side of the dividing Highlands, claimed as their boundary by the United States.
Seldom has an international question been so thor- oughly discussed as was that of this disputed boundary. *
and assigns, shall he holden to render at the Castle of St. Louis of Quebec of which they are to hold, and subject to the customary rights and dues in conformity with the Contume de Paris."
By an adjudication of the Prevotal Court of Quebec, dated Octo- ber 29th, 1709, this Seigniory of Madawaska was seized by virtue of a sentence of that court and was sold to Joseph Blondeau dit la Franchise as the highest bidder at a public judicial sale for the sum of 1,300 livres, and was accordingly adjudged to the said Joseph Blondeau.
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