Chapter XIX: Appendix: II (1)

THE BOUNDARY LINE OF CANADA

[Sidenote: The North-Eastern boundary.]

On the North-Eastern side, the Treaty of 1783 prescribed the boundary as follows:--

‘From the North-West angle of Nova Scotia, viz., that
angle which is formed by a line drawn due North; from the
source of St. Croix river to the Highlands; 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-Westernmost 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 that fall into
the Atlantic Ocean from those which fall into the river St.
Lawrence; comprehending all islands within twenty leagues
of any part of the shores of the United States, and lying
between lines to be drawn due East from the points where the
aforesaid boundaries between Nova Scotia on the one part, and
East Florida on the other, shall respectively touch the Bay
of Fundy and the Atlantic Ocean, excepting such islands as
now are or heretofore have been within the limits of the said
province of Nova Scotia.’

So far as these words refer to the sea boundary of the United States no difficulty arose, except in the Bay of Fundy. East Florida was ceded to Spain by Great Britain at the same time that the treaty with the United States was signed, and therefore the boundary line in the South had no further concern for the English.

[Sidenote: The border land between Acadia and New England.]

The North-East had been the border land between Acadia and the New England States. In old days, as was inevitable, there had been constant disputes between French and English as to the boundary between Acadia and New England, while Acadia still belonged to France; and, after the Treaty of Utrecht had given Acadia to Great Britain, as to the boundary between Acadia and Canada. When, by the Peace of 1763, Canada was ceded to Great Britain, the question of boundaries ceased to have any national importance; and no further difficulty, except as between British Provinces, arose until the United States became an independent nation. Then it became necessary to draw an international frontier line, which as a matter of fact had never yet been drawn. There seems to have been a more or less honest attempt, with the help of maps which were, as might have been expected, inaccurate, to adopt a line for which there was some authority in the past, instead of evolving a wholly new frontier; and the result of looking to the past was eventually to fix a boundary which was in no sense a natural frontier.

[Sidenote: The river St. Croix taken in 1763 as the boundary of Nova Scotia and hence adopted as the boundary line in the Treaty of 1783.]

The river St. Croix had always been a landmark in the history of colonization in North America. It was the scene of the first settlement by De Monts and Champlain; and, when Sir William Alexander in 1621 received from the King the famous grant of Nova Scotia, the grant was defined as extending to

‘the river generally known by the name of St. Croix and to
the remotest springs, or source, from the Western side of the
same, which empty into the first mentioned river’,

Later, the French claim on behalf of Acadia extended as far as the Penobscot river, if not to the Kennebec; but after the Treaty of Utrecht, the claims of Massachusetts to the country up to the St. Croix river were allowed in 1732;[230] and in 1763, after the Peace of Paris, the St. Croix river was, in the Commission to the Governor of Nova Scotia, designated as the boundary of the province, the following being the terms of the Commission:--

‘Although Our said province has anciently extended, and does
of right extend, so far as the river Pentagoet or Penobscot,
it shall be bounded by a line drawn from Cape Sable across
the entrance of the Bay of Fundy to the mouth of the river
St. Croix, by the said river to its source, and by a line
drawn due North from thence to the Southern boundary of Our
Colony of Quebec.’

Accordingly the river St. Croix was designated as the international boundary in the Treaty of 1783.

[Sidenote: Doubt as to the identity of the St. Croix river.]

[Sidenote: Commission appointed under the Treaty of 1794 to identify the river.]

But then the question arose which was the St. Croix river. Between 1763 and 1783 attempts had been made to identify it, but without success, for at least three rivers flowing into Passamaquoddy Bay were each claimed as the St. Croix. After the Peace of 1783, the dispute continued, and eventually the further Treaty of 19th of November, 1794, known from the name of the American statesman who negotiated it in London as Jay’s Treaty, provided in the Fifth Article that the question should be left to the final decision of three Commissioners, one to be appointed by the British Government, one by that of the United States, and a third by the two Commissioners themselves. The article provided that

‘the said Commissioners shall by a Declaration under their
hands and seals decide what river is the river St. Croix
intended by the treaty. The said Declaration shall contain
a description of the said river and shall particularize the
latitude and the longitude of its mouth and its source.’

[Sidenote: The St. Croix river determined in 1798.]

In August, 1795, the Treaty was ratified by Washington as President of the United States; and, in 1796, the Commissioners began their work, the third Commissioner being an American lawyer. The work was not concluded until another explanatory article had been, on the 15th of March, 1798, signed on behalf of the two Governments, relieving the Commissioners from the duty of particularizing the latitude and longitude of the source of the St. Croix, provided that they described the river in such other manner as they judged expedient, and laying down that the point ascertained and described to be the source should be marked by a monument to be erected and maintained by the two Governments. Eventually, on the 25th of October, 1798, the Commissioners, who had discharged their duties with conspicuous fairness and ability, gave their award. They identified the Scoodic river, as it was then called, with the St. Croix of Champlain; they selected the Eastern or Northern branch of the river as the boundary line in preference to the South-Western, thereby including in American territory a considerable area which the English had claimed; they marked beyond further dispute the point which was thereafter to be held to be the source of the St. Croix; but they did not demarcate the actual boundary line down the course of the river.

[Sidenote: The Maine Boundary question.]

From the source of the St. Croix, according to the words of the Treaty of 1783, which have been already quoted, a line was to be drawn due North to the Highlands which formed the water parting between the streams running into the St. Lawrence and those running into the Atlantic Ocean, and this line was supposed to form the North-West angle of Nova Scotia. No provision was made in the Treaty of 1794 for determining the boundary North of the source of the St. Croix river, and the labours of the St. Croix Commission were confined to identifying that river from the mouth to the source. A far more serious and more prolonged controversy arose over the territory to the North of the source, threatening to bring war between Great Britain and the United States, and not settled for sixty years.

[Sidenote: The old definitions of the boundary.]

As in the case of the St. Croix, the framers of the Treaty of 1783, in specifying a line drawn due North from the source of that river, to meet the Highlands which parted the basin of the St. Lawrence from that of the Atlantic, had recourse to past history and used definitions already in existence. Nova Scotia, as granted to Sir William Alexander, was, according to the terms of the charter, bounded from the source of the St. Croix

‘by an imaginary straight line which is conceived to extend
through the land, or run Northward to the nearest bay, river,
or stream emptying into the great river of Canada’.

The Royal Proclamation of 1763, which constituted the province of Quebec after the peace signed in that year, defined the Southern boundary of Quebec as passing

‘along the Highlands which divide the rivers that empty
themselves into the said river St. Lawrence from those which
fall into the sea’.

The Quebec Act of 1774 again defined the Southern boundary of Quebec as

‘along the Highlands which divide the rivers that empty
themselves into the river St. Lawrence from those which fall
into the sea, to a point in 45 degrees of Northern latitude
on the Eastern bank of the River Connecticut’.

In the Commission to the Governor of Nova Scotia issued in 1763, the Western boundary of Nova Scotia from the source of the St. Croix was defined

‘by a line drawn due North from thence to the Southern
boundary of Our colony of Quebec’.

Therefore the Treaty of 1783, in defining the international line as a line drawn from the source of the St. Croix

‘directly North to the aforesaid Highlands which divide the
rivers that fall into the Atlantic Ocean from those which
fall into the river St. Lawrence’,

used the previous definitions of the Western boundary of Nova Scotia and the Southern boundary of Quebec.

[Sidenote: The ‘North-West angle of Nova Scotia’.]

There were only two new points in the wording of the Treaty. The first was that the sea was defined as the Atlantic Ocean, thereby excluding the Bay of Chaleurs, and possibly the Bay of Fundy also, which was, in the Treaty, at any rate according to the British contention, treated as separate from the Atlantic Ocean. The second was the importation of the words ‘the North-West angle of Nova Scotia.’ It was obvious that wherever the Western boundary of Nova Scotia met the Southern boundary of Quebec there must be such an angle, but the Treaty spoke of it as a fixed starting point from whence to draw the boundary line; it assumed that this angle rested on highlands which divided the waters that flowed into the Atlantic from those which were tributaries of the St. Lawrence; and it assumed also that it would be reached by a due North line from the source of the St. Croix river. So the inaccurate maps of the day testified, and so paper boundaries, already recognized, prescribed. When, however, the matter was put to the test of actual geography, it was found that a line drawn due North from the source of the St. Croix nowhere intersected a water parting between the St. Lawrence basin and that of the Atlantic Ocean. The sources of the rivers which run into the Atlantic were found to be far to the West of the Northern line from the St. Croix river, to the West of that line even if it had been drawn from the source of the South-Western branch of the St. Croix, and not, as the St. Croix Commission had drawn it, from the source of its more easterly branch. It was evident that the earlier documents, which the Treaty of 1783 had followed, were based upon inaccurate information and that it had never been realized that the source of the St. John river, beyond which would naturally be sought the head waters of the streams running into the Atlantic, lay so far to the West, as is actually the case.

[Sidenote: The terms of the 1783 Treaty were not in accord with actual facts.]

It was therefore physically impossible to mark out a boundary in accordance with the terms of the Treaty. If the due Northern line was adhered to, the Highlands mentioned by the Treaty could not be reached. If those Highlands were adhered to, the due Northern line must be abandoned. In either case the North-Western angle of Nova Scotia, instead of being a fixed starting point, was an unknown factor, an abstraction which could only be given a real existence by bargain and agreement. The matter was one of vital importance to Great Britain, for it involved the preservation or abandonment of communication between the Maritime Provinces and Canada, all important in winter time when the mouth of the St. Lawrence was closed. The direct North line cut the St. John river slightly to the west of the Grand Falls on that river; and, had it been prolonged in the same direction, searching for Highlands till the St. Lawrence was nearly reached, Canada and New Brunswick would have been almost cut off from each other. The longer the controversy went on, the more clearly this result was seen by the Americans as well as by the English, hence the bitterness of the dispute and the tenacity with which either party maintained their position and accentuated their claims.

[Sidenote: Attempt at settlement in 1803.]

[Sidenote: The second American war.]

[Sidenote: The British Contention.]

On the 12th of May, 1803, a Convention was signed between Great Britain and the United States providing that the dispute should be left to the decision of an International Commission constituted in precisely the same manner as the St. Croix Commission had been constituted; but the Convention was never ratified, and the points at issue were still outstanding when the negotiations were set on foot which ended in the Treaty of Ghent at the close of the second war between the two nations. During the war formal possession was taken on behalf of Great Britain of the country between the Penobscot river and New Brunswick, which included the area under dispute, a proclamation to that effect being issued at Halifax on the 21st of September, 1814;[231] but at the date of the proclamation negotiations for peace were already proceeding, and the only basis on which the Americans would treat was the restitution of the status quo ante bellum, proposals for an adjustment of the boundary between New Brunswick and Massachusetts,[232] of which Maine then formed part, being treated as a demand for cession of territory belonging to the United States. On the British side it was maintained that the line claimed by the Americans

‘by which the direct communication between Halifax and Quebec
becomes interrupted, was not in contemplation of the British
Plenipotentiaries who concluded the Treaty of 1783’,[233]

and in a later letter, replying to the American representatives, the British negotiators wrote[234]

‘the British Government never required that all that portion
of the State of Massachusetts intervening between the
Province of New Brunswick and Quebec should be ceded to Great
Britain, but only that small portion of unsettled country
which interrupts the communication between Halifax and
Quebec, there being much doubt whether it does not already
belong to Great Britain’.

The inference to be drawn from the correspondence is that, on the strict wording of the Treaty of 1783, apart from the intention of those who negotiated it, the American claim was recognized to be stronger than the British.

[Sidenote: The Treaty of Ghent.]

[Sidenote: A Boundary Commission appointed.]

[Sidenote: The Commissioners disagree.]

The Treaty of Ghent was signed on the 24th of December, 1814, and the Fifth Article provided that two Commissioners should be appointed to locate the North-West angle of Nova Scotia as well as the North-Westernmost head of the Connecticut river, between which two points the Treaty of 1783 provided that the dividing line along the Highlands was to be drawn. A map of the boundary was to be made, and the latitude and longitude of the North-West angle and of the head of the Connecticut were to be particularized. If the Commissioners agreed, their report was to be final; but if they disagreed, they were to report to their respective governments, and some friendly sovereign or state was to arbitrate between them. The Commission first met in 1816, much time was taken up in surveying the North line from the source of the St. Croix to the watershed of the St. Lawrence, and it was not until 1821 that the two representatives, having failed to agree, gave distinct awards, the British Commissioner placing the North-West angle at the Highlands known as Mars Hill nearly 40 miles south of the St. John river, and the American Commissioner locating it nearly 70 miles north of that river, either Commissioner adopting the extreme claim put forward by his side.

[Sidenote: The Convention of 1827.]

[Sidenote: Award given by the King of the Netherlands as Arbitrator.]

[Sidenote: The award not accepted by the Americans.]

In view of the divergence between the two reports, it was necessary, in accordance with the terms of the Treaty of Ghent, to submit the matter to arbitration; but this step was not taken until yet another Convention had been signed on the 29th of September, 1827, providing that new statements of the case on either side should be drawn up for submission to the arbitrator. It was laid down that the basis of the statements should be two specified maps, one of which was referred to as the map used in drawing up the original Treaty of 1783. The inaccuracies in this map, Mitchell’s map, had been the origin of all the difficulties which had subsequently arisen. The King of the Netherlands was selected to arbitrate. In 1830 the statements were laid before him, and in January, 1831, he gave his award. It was to the effect that it was impossible, having regard either to law or to equity, to adopt either of the lines proposed by the two contending parties, and that a compromise should be accepted which was defined in the award. The line which the king proposed was more favourable to the Americans than to the English, but the Americans declined to consent to it, on the ground that, while the arbitrator might accept either of the two lines which were presented for arbitration, he was not empowered to fix a third and new boundary.

[Sidenote: Collision in the Aroostook region.]

[Sidenote: The Ashburton Treaty.]

[Sidenote: Final settlement of the Maine boundary question.]

Thus this troublesome matter was still left outstanding, and yet the necessity for a settlement was more pressing than ever. The new state of Maine maintained the American claim with more pertinacity and less inclination to compromise than the Government of the United States had shown; the United States Government was ready to accept a conventional line, but Maine objected, and meanwhile the result of the uncertainty and delay was that the backwoodsmen of Maine and New Brunswick were coming to blows. About the beginning of 1839 the disputes in the region of the Aroostook river nearly brought on war between the two nations, which was only averted by the mediation of General Winfield Scott then commanding the American forces on the frontier. Immediately afterwards two British Commissioners, Colonel Mudge and Mr. Featherstonhaugh, were deputed to survey the debatable territory and reported in April, 1840,[235] their report being followed by a survey on the part of the American Government. At length, on the 9th of August, 1842, Daniel Webster then Secretary of State for the United States, and Lord Ashburton, sent out as special Commissioner from Great Britain, concluded the Treaty of Washington, which put an end to the long and dangerous controversy. By the First Article of that Treaty the present boundary was fixed; the North line from the monument at the head of the St. Croix river was followed to the point where it intersected the St. John; the middle of the main channel of that river was then taken as far as the mouth of its tributary the St. Francis; thence the middle of the channel of the St. Francis up to the outlet of the Lake Pohenagamook; from which point the line was drawn in a South-Westerly direction to the dividing Highlands and the head of the Connecticut river until the 45th degree of North latitude was reached. The boundary was subsequently surveyed and marked out, and upon the 28th of June, 1847, the final results were reported and the matter was at an end.

[Sidenote: Settlement of the boundary between the province of Quebec and that of New Brunswick.]

The existing boundary is on the whole more favourable to Great Britain than the line which the King of the Netherlands proposed and the Americans rejected; but notwithstanding, Lord Ashburton’s settlement has always been regarded in Canada as having given to the United States territory to which Great Britain had an undoubted claim. The fault, however, was not with Lord Ashburton but with the wording of the original Treaty of 1783; and that treaty, as has been shown, was based on such geographical information as there was to hand, accepted at the time in good faith, but subsequently proved to be incorrect. It should be added that by the Third Article of the Ashburton Treaty the navigation of the river St. John was declared to be free and open to both nations, and that the settlement of the international boundary was followed by an adjustment of the frontier between Canada and New Brunswick. The dispute between the two provinces was, at the suggestion of the Imperial Government, eventually referred to two arbitrators, one chosen by each province, with an umpire selected by the arbitrators themselves. The award was given in 1851, and in the same year its terms were embodied in an Imperial Act of Parliament

‘for the settlement of the boundaries between the provinces
of Canada and New Brunswick’.

[Sidenote: The International boundary in the Bay of Fundy.]

In the Bay of Fundy the boundary line between British and American territory was, by the terms of the 1783 Treaty, to be drawn due East from the mouth of the St. Croix river, assigning to the United States all islands within twenty leagues of the shore to the South of the line,

‘excepting such islands as now are or heretofore have been
within the limits of the said province of Nova Scotia.’

Here was a further ground of dispute, touching the ownership of the islands in Passamaquoddy Bay. Geographically they would belong to the United States, unless they could be shown to have been within the limits of Nova Scotia. The Convention of 1803, which has already been mentioned as never having been ratified, in the First Article prescribed the boundary; and the Treaty of Ghent in the Fourth Article referred the matter to two Commissioners on precisely the same terms as were adopted by the next Article of the Treaty in the case of the North-West angle controversy, i.e., each nation was to appoint an arbitrator, and, if the two arbitrators failed to agree, separate reports were to be made to the two governments, and the final decision was to be left to some friendly sovereign or state. Fortunately the two arbitrators came to an agreement, delivering their award on the 24th of November, 1817. Three little islands in the Bay of Passamaquoddy, named Moose Island, Dudley Island, and Frederick Island, were allotted to the United States, and the rest of the islands in the bay, together with the island of Grand Manan, lying further out in the Bay of Fundy, were assigned to Great Britain. The actual channel, however, was not delimited; and though many years afterwards, under a Convention of 1892, Commissioners were appointed for the purpose, they failed to come to a complete agreement; this small question therefore between the two nations is still awaiting settlement under the Treaty for the delimitation of International Boundaries between Canada and the United States which was signed on 11th April, 1908.[236]

[Sidenote: The line from the North-Westernmost head of the Connecticut river to the St. Lawrence.]

From the point where the boundary line struck the North-Westernmost head of the Connecticut River, the Treaty of 1783 provided that it should be carried

‘down along the middle of that river to the forty-fifth
degree of North latitude, from thence by a line due West
on said latitude until it strikes the river Iroquois or
Cataraquy’.

Iroquois or Cataraquy was the name given to the St. Lawrence between Montreal and Lake Ontario, and the First Article of Lord Ashburton’s Treaty, identifying the North-Westernmost head of the Connecticut River with a river called Hall’s Stream, re-affirmed in somewhat different words the provision of the older Treaty as to this section of the boundary. Here there was no dispute. The line had already been laid down in the Proclamation of 1763 and the Quebec Act of 1774. In the words of the Ashburton Treaty it was the line

‘which has been known and understood to be the line of actual
division between the States of New York and Vermont on one
side and the British province of Canada on the other’.

[Sidenote: The line up the St. Lawrence and the lakes.]

From the point where the 45th parallel intersected the St. Lawrence, the line was, under the Treaty of 1783, to be carried up the middle of the rivers and lakes to the water communication between Lake Huron and Lake Superior, with the necessary result that Lake Michigan was entirely excluded from Canada. By the Sixth Article of the Treaty of Ghent two Commissioners were to be appointed to settle doubts as to what was the middle of the waterway and to which of the two nations the various Islands belonged: and, as in other cases, if the Commissioners disagreed, they were to report to their respective governments with a view to arbitration by a neutral power. A joint award was given,[237] signed at Utica on the 18th of June, 1822, the boundary being elaborately specified and the report being accompanied by a series of maps.

[Sidenote: The line between Lake Huron and Lake Superior, and to the most North-Western point of the Lake of the Woods.]

[Sidenote: Nonexistence of the ‘Long Lake’.]

[Sidenote: The ‘most North-Western point of the Lake of the Woods’ determined.]

[Sidenote: The Ashburton Treaty and the Treaty of 1871.]

[Sidenote: Navigation of the St. Lawrence.]

The Treaty of 1783 laid down that the line was to be drawn, as already stated, through the middle of Lake Huron

‘to the water-communication between that lake and Lake
Superior; thence through Lake Superior, Northward of the
Isles Royal and Phelipeaux to the Long Lake; thence through
the middle of said Long Lake and the water communication
between it and the Lake of the Woods to the said Lake of the
Woods, thence through the said lake to the most North-Western
point thereof’.

Under the Sixth Article of the Treaty of Ghent the Commissioners defined the frontier line well into the strait between Lakes Huron and Superior, but stopped short of the Sault St. Marie, at a point above St. Joseph’s Island and below St. George’s or Sugar Island. Here they considered that their labours under the Sixth Article terminated. But the next Article of the Treaty of Ghent provided that the same two Commissioners should go on to determine

‘that part of the boundary between the dominions of the two
powers, which extends from the water communication between
Lake Huron and Lake Superior to the most North-Western point
of the Lake of the Woods’.

Comparing these words with the terms of the 1783 Treaty, it will be noticed that mention of the Long Lake is eliminated, as it had been discovered in the meantime that the Long Lake could not be identified. On this section of the boundary the Commissioners were not at one. Accordingly on the 23rd of October, 1826,[238] they presented an elaborate joint report showing the points on which they had come to an agreement, and those on which they were at variance, with their respective recommendations. As to a great part of the line they were in accord, and especially they defined by latitude and longitude the most North-Western point of the Lake of the Woods, but they wholly disagreed as to the ownership of St. George’s or Sugar Island in the strait between Lake Huron and Lake Superior, and also as to the line to be taken from a point towards the Western end of Lake Superior[239] to the Lac de Pluie or Rainy Lake. They made, however, on either side suggestions for compromise. The matter was set at rest by the Second Article of Lord Ashburton’s Treaty, St. George’s Island being assigned to the United States, and a compromise line being drawn from Lake Superior to Rainy Lake. The channels along the whole boundary line from the point where it strikes the St. Lawrence are open to both nations; and by the Twenty-sixth Article of the Treaty of Washington, dated the 8th of May, 1871, the navigation of the St. Lawrence, from the point where it is intersected by the International Boundary down to the sea is declared to be free and open for the purposes of Commerce to the citizens of the United States, subject to any laws and regulations of Great Britain and Canada not inconsistent with the privilege of free navigation.

[Sidenote: The line from the most North-Western point of the Lake of the Woods to the Mississippi.]

[Sidenote: Mistake as to the source of the Mississippi in the Treaty of 1783.]

[Sidenote: Corrected by Jay’s Treaty of 1794.]

According to the 1783 Treaty the boundary line from the most North-Western point of the Lake of the Woods was to be drawn

‘on a due West course to the river Mississippi’,

and was then to follow that river Southwards. Here geographical knowledge was again wanting. The framers of the treaty were under the impression that the source of the Mississippi was further North than is actually the case, and they prescribed a geographical impossibility. It was not long before the mistake was found out, for the Fourth Article of Jay’s Treaty of 1794[240] began with the words

‘Whereas it is uncertain whether the river Mississippi
extends so far to the Northward as to be intersected by a
line to be drawn due West from the Lake of the Woods.’

The same Article provided that there should be a joint survey of the sources of the river, and, if it was found that the Westward line did not intersect the river, the boundary was to be adjusted

‘according to justice and mutual convenience and in
conformity to the intent of’

the 1783 Treaty.

[Sidenote: The Convention of 1818.]

[Sidenote: First mention in the boundary agreements of the 49th Parallel and the Rocky Mountains.]

The Fifth Article of the unratified Treaty of 1803 provided that a direct line should be drawn from the North-West point of the Lake of the Woods to the nearest source of the Mississippi, leaving it to three Commissioners to fix the two points in question and to draw the line. A further attempt at adjustment was made in 1806-7, when the negotiators provisionally agreed to an Article to the effect that the line should be drawn from the most North-Western point of the Lake of the Woods to the 49th parallel of latitude, and from that point due West along the parallel

‘as far as the respective territories extend in that quarter’.

This solution again was not carried into effect; and though the subject was raised in the negotiations which preceded the Treaty of Ghent in 1814, no mention was made of it in the Treaty itself. Eventually, however, on the 20th of October, 1818, a Convention was signed in London, the Second Article of which ran as follows:--

‘It is agreed that a line drawn from the most North-Western
point of the Lake of the Woods along the 49th parallel of
North latitude or, if the said point shall not be in the
49th parallel of North latitude, then that a line drawn
from the said point due North or South, as the case may be,
until the said line shall intersect the said parallel of
North latitude, and from the point of such intersection due
West along and with the said parallel, shall be the line
of demarcation between the territories of His Britannic
Majesty and those of the United States, and that the said
line shall form the Southern boundary of the said territories
of His Britannic Majesty and the Northern boundary of the
territories of the United States from the Lake of the Woods
to the Stony Mountains.’[241]

Here the Rocky Mountains, under the name of the Stony Mountains, first come in, their existence having been unknown, except by vague report, when the Peace of 1783 was signed.[242]

[Sidenote: The boundary line as far as the Rocky Mountains finally determined by the Ashburton Treaty.]

[Sidenote: The Ashburton Treaty finally determined the points arising out of the wording of the Treaty of 1783.]

Geographical knowledge was creeping on, but the wording of the Article shows that it was still uncertain whether the North-Westernmost point of the Lake of the Woods was North or South of the 49th parallel. This doubt was finally cleared up by the Commissioners who, as already stated, reported in October, 1826, and who fixed the point in question in 49° 23′ 55″ North; thus, when Lord Ashburton negotiated the 1842 Treaty, it was only left for him, adopting the point which the Commissioners had fixed, to lay down in the Second Article that the boundary line ran

‘thence, according to existing treaties, due South to its
intersection with the 49th parallel of North latitude, and
along that parallel to the Rocky Mountains’.

The 49th parallel runs through the Lake of the Woods, but the anterior provision that the boundary line should be carried to the North-Westernmost point of the lake, coupled with the fact that that point had been already determined, necessitated an unnatural and inconvenient diversion of the frontier line first to the North-West and then due South again, thereby including in American territory a small corner of land which should clearly have been assigned to Canada. For this result Lord Ashburton has been blamed, as he was blamed in the matter of the Maine boundary, but in either case his hands were tied by previous negotiations and the wording of existing treaties. A fair review of the whole subject leads to the conclusion that the Treaty of Washington in 1842 was a not inadequate compromise of the almost insuperable difficulties which the wording of the original Treaty of 1783 had left outstanding.

[Sidenote: Later boundary questions.]

In tracing the evolution of the boundary between Canada and the United States we have now reached the point where the 1783 Treaty ceased to operate, and have seen that the negotiations connected with the interpretation of the Treaty resulted in the line of demarcation being carried far beyond that point, viz., the head of the Mississippi, up to the range of the Rocky Mountains. Meanwhile the Pacific Coast had begun to attract attention, and a new crop of international questions had come into existence.

[Sidenote: The Oregon boundary dispute.]

The Western territory in dispute between the two nations was known as the Oregon or Columbia territory, and it lay between the 42nd degree of North latitude and the Russian line in 54° 40′ North latitude. The Columbia river took its name from the fact that it had been entered in May, 1792, by an American ship from Boston named the _Columbia_, commanded by Captain Gray, who thus claimed to be the discoverer of the river. In 1805 Lewis and Clark, the first Americans to cross the continent, reached its head waters and followed the river down to the sea. In 1811 an American trading settlement was planted at Astoria near its mouth. This settlement was voluntarily surrendered to Great Britain in the war which followed shortly afterwards, but was restored, without prejudice, to the United States under the general restitution article of the Treaty of Ghent. The Third Article of the subsequent Treaty of October 20th, 1818, provided that

‘any country that may be claimed by either party on the
North-West coast of America, Westward of the Stony Mountains,
shall, together with its harbours, bays, and creeks and the
navigation of all rivers within the same, be free and open
for the term of 10 years’

to both Powers, without prejudice to the claims either of themselves or of foreign Powers; and this Article was, by a Convention of 6th of August, 1827, indefinitely prolonged--subject to one year’s notice on either side--all claims being, as before, reserved. This last Convention was concluded, as its terms specified, in order to prevent all hazard of misunderstanding and to give time for maturing measures for a more definite settlement.

[Sidenote: The position in 1842.]

On this basis matters stood in 1842, when the Ashburton Treaty was signed. There was joint occupation of the Oregon territory by British and American subjects, and freedom of trade for both. Lord Ashburton had been empowered to negotiate for a settlement of the North-Western as well as the North-Eastern frontier line; but the latter, which involved the question of the Maine--New Brunswick boundary, being the more pressing matter, it was thought well to allow the determination of the line West of the Rocky Mountains to stand over for the moment. As soon as Lord Ashburton’s Treaty had been signed at Washington in August, 1842, Lord Aberdeen, then Foreign Secretary in Sir Robert Peel’s Ministry, made overtures to the United States with a view to an early settlement of the Oregon question. A long diplomatic controversy ensued, complicated by changes of government in the United States, and tending, as is constantly the case in such negotiations, to greater instead of less divergence of view.

[Sidenote: The rival claims.]

The Americans contended that they had a title to the whole territory up to the Russian line, and they claimed the entire region drained by the Columbia river. As a compromise, however, they had already, in the negotiations which ended in the Convention of 1827, suggested that the boundary line along the 49th parallel should be continued as far as the Pacific, the navigation of the Columbia river being left open to both nations. This offer was repeated as the controversy went on, with the exception that on the one hand free navigation of the Columbia river was excluded, and on the other the American Secretary of State proposed

‘to make free to Great Britain any port or ports on
Vancouver’s Island, south of this parallel, which the British
Government may desire’.[243]

The counter British proposal was to the effect that the boundary line should be continued along the 49th parallel until it intersected the North-Eastern branch of the Columbia river, and that then the line of the river should be followed to its mouth, giving to Great Britain all the country on the north of the river and to the United States all on the south, the navigation of the river being free to both nations, and a detached strip of coast land to the north of the river being also conceded to the United States, with the further understanding that any port or ports, either on the mainland or on Vancouver Island, South of the 49th parallel, to which the United States might wish to have access, should be constituted free ports.

[Sidenote: Settlement of the Oregon boundary question by the Treaty of 1846.]

The arguments advanced on both sides, based on alleged priority of discovery and settlement and on the construction of previous treaties, are contained in the Blue Book of 1846, and are too voluminous to be repeated here. The controversy went on from 1842 to 1846; and, when the spring of the latter year was reached, the Americans had withdrawn their previous offer and had refused a British proposal to submit the whole matter to arbitration. There was thus a complete deadlock, but shortly afterwards a debate in Congress showed a desire on the American side to effect a friendly settlement of a dispute which had become dangerous, and, the opportunity being promptly taken by the British Government, a Draft Treaty was sent out by Lord Aberdeen, which was submitted by President Polk to the Senate, who by a large majority advised him to accept it.[244] The Treaty was accordingly signed at Washington on the 15th of June, 1846. By the First Article the boundary line was

‘continued Westward along the said forty-ninth parallel of
North latitude to the middle of the channel which separates
the continent from Vancouver Island, and thence Southerly,
through the middle of the said channel and of Fuca’s Straits,
to the Pacific Ocean’,

the navigation of the channel and straits South of the 49th parallel being left free and open to both nations. By the Second Article of the same Treaty, the navigation of the Columbia river, from the point where the 49th parallel intersects its great Northern branch, was left open to the Hudson’s Bay Company and to all British subjects trading with the same. The effect of the Treaty was that Great Britain abandoned the claim to the line of the Columbia river, and the United States modified its proposal to adopt the 49th parallel as the boundary so far as to concede the whole of Vancouver Island to Great Britain. The news that the treaty had been signed reached England just as Sir Robert Peel’s ministry was going out of office.

[Sidenote: The San Juan boundary question.]

[Sidenote: Arbitration under the Treaty of 1871.]

The delimitation of the boundary which the Treaty had affirmed gave rise to a further difficulty. The Treaty having provided that the sea line was to be drawn southerly through the middle of the channel which separates Vancouver Island from the continent and of Fuca’s Straits into the Pacific Ocean, the two nations were unable to agree as to what was the middle of the channel in the Gulf of Georgia between the Southern end of Vancouver Island and the North American coast. The main question at issue was the ownership of the island of San Juan, and the subject of dispute was for this reason known as the San Juan boundary question. The British claim was that the line should be drawn to the Eastward of the island, down what was known as the Rosario Straits. The Americans contended that it should be drawn on the Western side, following the Canal de Haro or Haro Channel. Eventually it was laid down by the 34th and following Articles of the Treaty of Washington of 8th of May, 1871--the same Treaty which provided for arbitration on the _Alabama_ question--that the Emperor of Germany should arbitrate as to which of the two claims was most in accordance with the true interpretation of the Treaty of 1846, and that his award should be absolutely final and conclusive. On the 21st of October, 1872, the arbitrator gave his award in favour of the United States, and it was immediately carried into effect, thus completing the boundary line from the Atlantic to the Pacific.

[Sidenote: The Alaska boundary question.]

In a message to Congress on the subject of the San Juan Boundary Award, President Grant stated

‘The Award leaves us, for the first time in the history of
the United States as a nation, without a question of disputed
boundary between our territory and the possessions of Great
Britain on this continent;’

and he suggested that a joint Commission should determine the line between the Alaska territory and the conterminous possessions of Great Britain, on the hypothesis that here there was no ground of dispute and that all that was required was the actual delimitation of an already admitted boundary line. The matter proved to be more complex than the President’s words implied.

[Sidenote: Russian America ceded to the United States.]

[Sidenote: Line of demarcation between British and Russian possessions in North America drawn in 1825.]

By a Treaty signed on the 30th of March, 1867, the territory now known as Alaska was ceded by Russia to the United States. It was the year in which the Dominion Act was passed; and, when British Columbia[245] in 1871 joined the Dominion, Canada became, in respect of that province, as well as in regard to the Yukon Territory, a party to the Alaska boundary question. The limits of Russian America, as it was then called, had been fixed as far back as 1825, when, by a treaty between Great Britain and Russia, dated the 28th of February in that year, a line of demarcation was fixed between British and Russian possessions

‘upon the coast of the continent and the islands of America
to the North-West’.

The line started from the Southernmost point of Prince of Wales Island, which point was defined as lying in the parallel of 54° 40′ North latitude and between the 131st and 133rd degrees of West longitude. It was carried thence to the North, along the channel called Portland Channel, up to that point of the continent where it intersected the 56th parallel of North latitude. From this point it followed the summit of the mountains parallel to the coast until it intersected the 141st degree of West longitude, and was carried along that meridian to the Arctic Ocean. The Treaty provided that the whole of Prince of Wales Island should belong to Russia, and that wherever the summit of the mountains running parallel to the coast between the 56th parallel of North latitude and the point where the boundary line intersected the 141st meridian was proved to be at a distance of more than 10 marine leagues from the ocean, the line should be drawn parallel to the windings of the coast at a distance from it never exceeding 10 marine leagues.

[Sidenote: Free navigation of rivers.]

Free navigation of the rivers which flowed into the Pacific Ocean across the strip of coast assigned to Russia was conceded in perpetuity to British subjects; and, after the transfer of Russian America to the United States, the Twenty-sixth Article of the Treaty of Washington of 1871 provided that the navigation of the rivers Yukon, Porcupine, and Stikine should for ever remain free and open to both British and American citizens, subject to such laws and regulations of either country within its own territory as were not inconsistent with the privilege of free navigation.

[Sidenote: Negotiations for a settlement of the boundary with the United States.]

[Sidenote: The Convention of 1892.]

In 1872, the year after the entry of British Columbia into the Dominion of Canada, mining being contemplated in the northern part of British Columbia, overtures were, at the instance of the Canadian Government, made to the United States to demarcate the boundary, which had never yet been surveyed and delimited. The probable cost of a survey caused delay, and no action had been taken when in 1875 and 1876 disputes arose as to the boundary line on the Stikine river. The Canadian Government in 1877 dispatched an engineer to ascertain approximately the line on the river, and the result of his survey was in the following year provisionally accepted by the United States as a temporary arrangement, without prejudice to a final settlement. Negotiations began again about 1884, and, by a Convention signed at Washington on the 22nd of July, 1892, it was provided that a coincident or joint survey should be undertaken of the territory adjacent to the boundary line from the latitude of 54° 40′ North to the point where the line intersects the 141st degree of West longitude. It was added that, as soon as practicable after the report or reports had been received, the two governments should proceed to consider and establish the boundary line. The time within which the results of the survey were to be reported was, by a supplementary Convention, extended to the 31st of December, 1895, and on that date a joint report was made, but no action was taken upon it at the time.

[Sidenote: Discovery of gold at Klondyke.]

[Sidenote: Further negotiations.]

In 1896 the Klondyke goldfields were discovered in what now constitutes the Yukon district of the North-West Territories, and in the following year there was a large immigration into the district. The goldfields were most accessible by the passes beyond the head of the inlet known as the Lynn canal, the opening of which into the sea is within what had been the Russian fringe of coast. The necessity therefore for determining the boundary became more urgent than before. In 1898 the British Government proposed that the matter should be referred to three Commissioners, one appointed by each government and the third by a neutral power; and that, pending a settlement, a _modus vivendi_ should be arranged. A provisional boundary in this quarter was accordingly agreed upon, but, instead of the Commission which had been proposed, representatives of Great Britain and the United States alone met in 1898 and 1899 to discuss and if possible settle various questions at issue between the two nations, among them being the Alaska boundary. They were to endeavour to come to an agreement as to provisions for the delimitation of the boundary

‘by legal and scientific experts, if the Commission should so
decide, or otherwise’,

memoranda of the views held on either side being furnished in advance of the sittings of the Commission. Again no settlement was effected.

[Sidenote: The Convention of 1903. Joint Commission appointed.]

The dispute between Great Britain and Venezuela as to the boundary between Venezuela and British Guiana, in which the Government of the United States had intervened, had, by a Convention signed in February, 1897, been referred to arbitration, the Arbitrators being five in number, two Englishmen, two Americans, and one representative of a neutral State. In July, 1899, before the award in this arbitration had been given, Lord Salisbury proposed to the American Government that a treaty on identical lines with the Venezuela boundary Convention should apply arbitration to the Alaska Boundary question. To this procedure, giving a casting vote on the whole question to a representative of a neutral power, the American Government took exception, and suggested instead a Tribunal consisting of ‘Six impartial Jurists of repute’, three to be appointed by the President of the United States and three by Her Britannic Majesty. A suggestion made by the British Government that one of the three Arbitrators on either side should be a subject of a neutral state was not accepted; and eventually, on the 24th of January, 1903, a Convention was signed at Washington, constituting a tribunal in accordance with the American conditions. The three British representatives were the Lord Chief Justice of England and two leading Canadians, one of them being the Lieutenant-Governor of the Province of Quebec.

[Sidenote: Points for decision.]

The preamble of the Convention stated that its object was a ‘friendly and final adjustment’ of the differences which had arisen as to the ‘true meaning and application’ of the clauses in the Anglo-Russian Treaty of 1825 which referred to the Alaska boundary. The tribunal was to decide where the line was intended to begin; what channel was the Portland Channel; how the line should be drawn from the point of commencement to the entrance to the Portland Channel; to what point on the 56th parallel and by what course it should be drawn from the head of the Portland Channel; what interpretation should be given to the provision in the Treaty of 1825 that from the 56th parallel to the point where the 141st degree of longitude was intersected the line should follow the crest of the mountains running parallel to the coast at a distance nowhere exceeding ten marine leagues from the ocean; and what were the mountains, if any, which were indicated by the treaty.

[Sidenote: Main point at issue.]

The main point at issue was whether the ten leagues should be measured from the open sea or from the heads of the inlets, some of which ran far into the land. If the latter interpretation were adopted, the result would be to give to the United States control of the main lines of communication with the Klondyke Mining district, just as the Maine boundary threatened to cut, and in large measure did cut, communication between the Maritime Provinces and Quebec.

[Sidenote: The Award.]