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men also armed, in order to collect from the Inhabitants a Poll Tax assessed by the Court at Machias, in the said County of Washington. The Inhabitants resisted the payment of the Tax, alleging that they were summoned to discharge the duties of British subjects on one side, and claimed at the same time as American subjects on the other, and refusing to pay any Tax till it should be settled to which Country they belonged. Mr. Cooper upon this began to temporize, and persuade them that if they would pay the Tax they would be acknowledged as American subjects, and that the General Court of Massachusetts would in that case be justified in granting them their Lands: And he further pledged himself to them, that if they would pay the Tax so that he could make a regular return thereof to the Court, he would not again enter upon the Island as Sheriff, until he had procured for them a grant of their Lands from the General Court of Massachusetts. The Inhabitants, not having at that time any grants of their Lands under the British Government, yielded to these terms, and some of them paid the Tax, some refused, and some left the Island. These were facts of public notoriety at the time, and of which abundant testimony may be at any time produced.
Grants of Land were made to those who submitted and took the Oath of Allegiance to the States, and the authority of the British Government was never afterwards actually enforced upon either of the Islands in question: Another circumstance tended to confirm the Americans in the possession of these Islands, which was, that some seizures made by Mr. Leonard, the Prosecutor in this cause, of American vessels found trading at Dudley-Island, contrary to the provisions of the same Statute, upon which the present prosecution is founded, were released to the Claimants, by the recommendation of the Officers of the Government of New-Brunswick, though much against Mr. Leonard's wishes and inclination. This took place in the summer of 1786. The release of these seizures was recommended, not from any doubt of his Majesty's right to the Islands, but because the Americans were in the actual possession of some of them, and it was not thought prudent at that time to adopt any forcible measures to dispossess them, of which nature these seizures were at that time considered to be.
Thus has the possession of those Islands been wrested from His Majesty; and from that time the Claims and encroachments of the American subjects upon His Majesty's territory
and rights in that quarter have been constantly extending and increasing. Had the same measures been pursued with regard to the Islands, which took place respecting the Claim to the territory between the St. Croix and Magaguadavic, in the years 1784 and 1785, little doubt can be entertained, that the very valuable trade and fisheries now carried on by the Americans in that quarter, to the great injury of the commercial and maritime interests of Great Britain, would have been in a great measure, if not totally prevented.
In the year 1785, there were only 17 heads of families upon Moose-Island, whereas at this day they probably ex ceed 200, and they are daily and rapidly increasing. This Island contains about 2700 acres of Land.
From the indulgence they experienced and the silence with which their encroachments were submitted to, the Americans at length, in defiance of the Navigation Act, and of all the other important and salutary provisions of the laws of trade in this respect made, came even to the shores of Campo-Bello Island, and took in their cargoes of Plaister of Paris from the wharfs there. Mr. Leonard again interfered: and by the seizure two years ago of two American vessels employed in this illicit traffic, and their subsequent condemnation in this Court, a stop was put to a practice so highly unjustifiable.
But no sooner is this spirit of encroachment suppressed in one form, than it starts up with new appearances and still more alarming pretensions; of this, stronger evidence cannot be adduced than is exhibited in the Claim now under the consideration of the Court.
The Claimant for the reasons set forth in his Claim, declares upon his oath that he believes, that "the waters on "which the Sloop was anchored and seized are wholly within " and belong to the United States."
Now the waters here spoken of are the waters between Dudley-Island on one side, and the Island of Campo-Bello on the other, and these waters can by no possibility belong to, or 'be wholly within the United States, unless the Island of Campo-Bello either belongs to, or lies wholly within the same. States; and we accordingly find that one of the reasons or grounds of the Claimant's belief respecting these waters isThat the principal channel from the Bay of Fundy into the "river St. Croix or Scoodiac is to the Eastward of the said "Island of Campo-Bello, and between Deer-Island and "Moose-Island, lying to the Northward thereof."
Thus the Americans are not contented with having wrest ed from Great-Britain, and with now holding in full sove→› reignty Moose-Island, Dudley-Island, and Frederick-Island, to which they have not, as will presently be more fully shewn, one spark of right; they are not contented with a right of water-way or navigation through the common and nearest channel to their moiety of the St. Croix river, from the main channel or that part of the Bay of Fundy which lies on the. outside of the Islands; which common channel, notwithstanding all the bars in it, is sufficient for the passage of the largest ships that trade within the Bay of Fundy, and is the channel usually if not in all instances made use of by American vessels passing to and from the river St. Croix, but, because there is a deeper channel by the East end of CampoBello Island, they now affect to claim this channel as the water boundary line between His Majesty's territory and that of the United States;-a prelude, without doubt, to an ultimate claim to the Island of Campo-Bello itself, in full property and sovereignty: Be that however as it may, they now claim the whole of the waters above mentioned as a safe and secure asylum from a violation there, of the Navigation Laws of Great-Britain, the due observance of which is so highly important to her maritime strength and interests: That this is the object of the pretensions set up in this Claim is manifest from that part of it in which the foreign clearance of the Sloop (which I shall hereafter notice) is mentioned; the Claimant declaring that this clearance was obtained to enable him to go and "anchor his Sloop off Snug Cove, there to lie and take on "board a cargo of Plaister of Paris from British vessels lying "there also ;" taking care only to lie "without the Points 66 or Ilead-lands forming Snug Cove." Now by a bare inspection of the Map, it will be seen that a line drawn across Snug Cove from one of these Points or Head-lands to the other, will leave nearly the whole of the stream or waters between Campo-Bello Island and Dudley-Island, on the outside of such line; and (if this Claim should be established) will render them a secure place of rendezvous for carrying on every species of illicit commerce between the two Countries.
The other reason which the Claimant assigns for his belief respecting these waters is, "That the Eastern boundary "of the United States is a line to be drawn along the middle of "the river Saint Croix, from its mouth in the Bay of Fundy, to "its sourcé, &c. and that all Islands within 20 leagues of any part of the shores of the United States, and lying between parallel
due East lines to be drawn from the mouth of the said river ❝ Saint Croix, and the mouth of Saint Mary's river, are compre hended within the limits and boundaries of the said United "States (except such Islands as at the time of or before the Treaty "of Peace of 1783, were within the limits of the Province of "Nova-Scotia.)"
This reason, given by the Claimant for his belief that the waters between Campo-Bello Island and Dudley-Island, where the Sloop was anchored and seized, are wholly with in and belonging to the United States," must be predicated upon the supposition not only that Moose-Island, DudleyIsland, and Frederick-Island, but Campo-Bello Island also, are wholly within or belonging to the United States.
This brings me to a more particular inquiry, whether any and which of the abovementioned Islands do, by the Treaty of 1783, belong to the United States.
It has been already observed, that upon the slightest perusal of the second article of the Treaty of Peace, it is obvious, "that it was clearly intended by it, that no part of the Pro"vince of Nova-Scotia should be thereby ceded by His "Majesty to the United States." The United States are expressly bounded East by the western boundaries of the Province of Nova-Scotia, which excludes them from any part of the Continent which was within that Province; and in still stronger terms they are excluded from all the Islands within the same Province, by the exception of such Islands as at the "time of the Treaty of Peace, or at any time theretofore had "been within the limits of the Province of Nova-Scotia."
It has been also shewn that the Islands in question, and all the Islands in Passamaquoddy-Bay, being within six leagues of the main Land forming the Province of Nova-Scotia, both at its original creation in 1621, and at the time of the Treaty of Peace in 1783, were reserved by this Treaty to His Majesty.
I shall now examine more particularly the expressions made use of in the Treaty in this regard. This cannot be done more forcibly than by adopting the reasoning made use of by his Grace the Duke of PORTLAND on this subject, in his letter to Lt. Governor CARLETON, being a circular one to the Governors of Nova-Scotia and New Brunswick, dated 11th April, 1799. His Grace in this letter says, It is par "ticularly worthy of observation, that in the above-men"tioned article of the American treaty of 1783, the excep❝tion in favour of such Islands as now are or heretofore have
been within the limits of the Province of Nova-Scotia, is subsè quent to that part of the same article which assigns to "America its precise boundaries, comprehending all Islands "within 20 leagues of any part of the shores of the United States, *&c. &c. consequently the above exception is valid even "against the right of America, to all Islands within 20 leagues of any part of the shores of the United States, if any of the "Islands so situated are such Islands as now are or heretofore "have been within the limits of the Province of Nova-Scotia.-In"deed it is upon the face of it a general exception in favour ❝of such Islands as now are or heretofore have been within the "limits of the Province of Nova-Scotia, which nothing in the "preceding part of the article can by any possibility affect." This letter of his Grace was occasioned by a letter to him from Lord GRENVILLE, then Secretary of State for foreign affairs, communicating an extract of a letter which his Lord`ship had received from Mr. LISTON, the American ambassador, on the subject of a doubt that had been started respecting the boundary of His Majesty's Province of New"Brunswick and the American district of Maine." His Grace in his letter further says, "You will observe that "this doubt is stated to have necessarily arisen out of the "determination which has taken place respecting the inden"tity of the river St. Croix, intended by the American "Treaty of 1783, and that although it primarily goes only "to a presumed right of water-way or Navigation to that "moiety of the Saint Croix, the boundary river which is "nearest to the American territory, yet that it appears to be "ultimately intended to deduce therefrom as a further consequence, a right to the Islands in Passamaquoddy-Bay, lying 66 on the American side of such a water-way or navigation." The extract from Mr. LISTON's dispatch, dated Philadelphia, 31st December, 1798, is as follows:-"Your Lordship "will have observed in the speech of the President of the "United States, to the two houses of Congress, a short state"ment of a fresh doubt that has been started with regard "to the boundary between His Majesty's Province of Nova"Scotia and the American district of Maine. This difficulty "was originally suggested by the Agent and the Commis"sioner of the United States appointed under the fifth article "of the Treaty of Amity. I find, that the opinion given on "this subject by the 3d Commissioner, Judge BENSON, at the "conclusion of a paper which he has drawn up and put into "the hands of the President and the Secretary of State, with