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No. I. (A.)
CASE of the Sloop FALMOUTH, decided in the Vice-
Court of VICE-ADMIRALTY.
} October, 1805.
The ADVOCATE-GENERAL*, upon the relation of GEORGE LEONARD, Esq. Qui tam, &c. Libellant of the Sloop FALMOUTH and Cargo, against
EBENEZER LOCK, Claimant thereof,
THE Libel in this cause states that Mr. Leonard, SuLibel. perintendant of Trade and Fisheries in North America, and a preventive Officer in the service of His Majesty's Customs in New-Brunswick, on the 24th October, 1805, did seize and take at Snug Cove, in the island of Campo-Bello, in the County of Charlotte, in the Province of New-Brunswick, the Sloop Falmouth, of the burden of ninety-three Tons, under the command of Ebenezer Lock, with her cargo then on board, consisting of Plaister of Paris, and alledges as a cause of forfeiture, that the said Plaister of Paris after the 25th March, 1698, to wit, on the 22d October, 1805, was laden and put on board the said Sloop in Snug Cove aforesaid, the said Sloop being a foreign-built vessel, and not owned by any of His Majesty's subjects, nor navigated with a Master and Mariners, or any or either of them, a subject or subjects of His Majesty, but wholly owned and navigated by foreigners * Ward Chipman, Esq.
and aliens, contrary to the provisions of the Statutes in that case made and provided.
By the Stat. of William 3d, commonly called the Register Act, it is enacted, that "after the 25th March, 1698, no goods or merchandises whatsoever shall be imported into 66 or exported out of any Colony or Plantation to His Majesty in Asia, Africa, or America belonging, or in his pos66 session, or which may hereafter belong unto or be in posses"sion of His Majesty, his heirs or successors, or shall be laden ❝in or carried from any one port or place in the said Colonies or Plantations, to any other port or place in the same, the Kingdom of England, Dominion of Wales, or Town of "Berwick upon Tweed, in any ship or bottom, but what is "or shall be of the built of England, or of the built of Ire"land, or of the said Colonies and Plantations, and wholly "owned by the people thereof, or any of them, and navi"gated by the masters and three-fourths of the Mariners of "the said places only, under pain of forfeiture of ship and "goods."
This act was made in confirmation and in furtherance and explanation of the provisions of the Navigation Act, eminently so called, the Statute 12 Car. 2. c. 18, the great palladium of the maritime strength and resources of the Empire of Great Britain, as may be seen by a reference to the 1st and 11th Sections of the Statute last mentioned, and to the 13th and 14th Car. 2. c. 11. § 6.
A Claim is interposed by Ebenezer Lock, of Falmouth, in the state of Massachusetts, late Master of the said Sloop Falmouth, in behalf of himself and others, interested in the Sloop and her Cargo.
The Claimant protesting that Mr. Leonard, the relator, had no right as Superintendant of Trade and Fisheries to make any seizure for a breach of the laws of trade, and protesting that he never did in fact seize the Sloop and her cargo, but that the Sloop and her cargo were seized and taken possession of on the day stated in the Libel, at Passamaquoddy, within the limits and jurisdiction of the United States of America, or in waters held neutral between Great-Britain and the United States, by one Charles Edward Leonard, the Master of the Schooner commonly called the Cutter, by force and without legal authority, and by him brought to the harbour of St. John; for answer saith,
1. That on or about the 21st October, he entered the said Sloop at the Custom-House at Passamaquoddy, in the
said United States, under the direction of Lewis Frederick Delesdernier, esq. and afterwards obtained from the said Custom-House a clearance, (commonly called a foreign clearance) for the said sloop in Ballast and Stores; for the purpose of enabling him to go with the said Sloop and anchor in the stream between the Islands of Campo-Bello and DudleyIsland, and off Snug Cove, in the said Island of Campo-Bello, there in the said stream to lay and to take in a load of Plaister of Paris from on board other vessels there in the said stream also lying, and to carry upon freight, on account of Messrs. Andrews and Campbell, to some part of the said United States.
2. That he accordingly sailed with the said Sloop and anchored her in the stream between the said two Islands, so as to see the house of the said Lewis Frederick Delesdernier, upon the American shore, from the said Sloop when anchored and without the Points or Head-lands forming Snug Cove aforesaid, which place he continued to lay at without moving the anchor of the said Sloop, until he had taken on board the said Sloop 120 tons of Plaister from two other vessels, which he believes were British vessels, and until the said Sloop was seized and taken possession of by the said Charles Edward Leonard.
3. That the place where the said Sloop was anchored and where she remained and was seized and taken, is the place where vessels of the United States usually and frequently anchor and receive cargoes of Plaister, as he the Respondent did in the said Sloop.
4. That it is the place heretofore pointed out and assented to by the Officers of His Majesty's Customs of the Port of St. John, as the proper place for the vessels of the United States to anchor and take in their cargoes of Plaister of Paris.
5. That the waters where the said Sloop anchored and was seized are, as he is informed and believes, either wholly within the limits and boundaries and belong to the United States of America, or otherwise are the waters of the River forming the boundary between His Majesty's dominions and the said United States, and as such neutral and in common for the vessels of both nations.
6. That inasmuch as the principal channel from the Bay of Fundy into the river St. Croix or Scoodiac, commonly so called, is to the Eastward of the said Island of Campo-Bello, and between Deer-Island and Moose-Island, (lying to the
Northward thereof) and forasmuch as the Eastern boundary of the said United States is " a line to be drawn along the "middle of the river St. Croix, from its mouth in the Bay of
Fundy to its source, &c. and that all Islands within twenty "leagues of any part of the shores of the said United States, "and lying between parallel due East lines to be drawn from "the mouth of the said river St. Croix and the mouth of મંદ St. Mary's river, are comprehended 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) he "believes that the waters on which the said Sloop was an"chored and seized and taken as aforesaid, are wholly within "and belong to the United States," but if otherwise
7. He avers that the anchoring, lying and loading with Plaister of Paris from on board British vessels in the stream, and at the same place where the said Sloop was seized and taken as aforesaid, has been for a long time sanctioned by the con current assent of the Officers of His Majesty's Customs at this Port of St. John, and at the Port of Passamaquoddy, as a practice not prohibited by any of the existing laws of either of the two Countries.
8. He therefore prays that the said Sloop and Cargo may be adjudged to be restored to him with costs and charges. Replica. To this answer and Claim a general Replication is filed on the part of the Libellant, and
A Rejoinder on the part of the Claimant, which puts the cause at issue.
Several witnesses have been examined on both sides, which "perhaps was unnecessary, as it is conceived that it would have been perfectly safe on the part of the Prosecutor, to have proceeded to a hearing of the cause upon the Libel and answer, without controverting the facts stated by the Claimant in his defence, as the law arising upon those facts, it is humbly submitted, will not only justify the seizure, but must work a forfeiture and condemnation of the Sloop and her cargo.
With the leave of the Court then, the merits of the cause shall be discussed upon the facts disclosed in the Claim, before the testimony of the witnesses is taken into considera tion.
I will take up the grounds of the Claim in the order in which they naturally present themselves.
Appendix, No. 1,