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or head-lands forming the Cove, there to take in a cargo plaister of Paris from British vessels.
Now, if this cargo was to be taken on board from British vessels lying within any port or place in the United States, no such foreign clearance was necessary; and if it was to be taken on board from British vessels lying within the British territory, the clearance was manifestly given, in open violation of the British navigation laws, and of the express provisions of the third article of the treaty of amity, commerce and navigation, between the two nations.-In whichever light then this clearance is viewed, it must be pronounced false or fraudulent.
Again, this cargo could not have been taken on board this sloop within the United States, without having been regularly imported there, and if so imported in a British vessel, such vessel must have been entered at the American customhouse, and have paid the tonnage duty and the light duty, imposed by the laws of the United States upon all foreign vessels, amounting together to one dollar per ton; this clearance then was evidently intended to prevent the payment of these duties by taking the cargo on board within the British territory, and was therefore doubly fraudulent on the one hand by depriving the United States of these duties, and on the other by procuring an open and intended violation and infringement of the British laws and the treaties subsisting between his majesty and the United States.
Again, this clearance was obtained for the express purpose of enabling this vessel to take on board the cargo in question, This clearance was obtained for the express purpose of abling this vessel to take on board the cargo in question, within the British territory.
The cargo, by the claimant's express averment, was taken on board in consequence and by virtue of this clearance.
The cargo then, by the claimant's own shewing, was knowingly laden on board the sloop, within the British territory; and being so laden is liable to forfeiture and condemnation in this court.
It is perhaps difficult to conceive a more bare-faced attempt to violate the existing laws of both nations, or a more bare-faced avowal of so flagrant an intention than is exhibit, ed the on of the claimant in the present cause. part And the principal ground of justification seems to be that such a practice has been "for a long time sanctioned by the ❝ custom-house officers of both nations:" if this be the case,
it is high time to put a stop to a practice so dishonourable to both countries, so extensively injurious to his majesty's interests and the commerce and navigation of Great-Britain.
The consequences of supporting the claim in the present cause would be truly alarming; this would be in effect to exercise an act of the highest dominion and sovereignty, by making the ports on the British and American side of these waters to be free ports reciprocally, and to annihilate in these waters the provisions of the laws of trade and navigation of both nations.
If this sloop could lawfully take in the present cargo from British vessels, at the place where it was laden on board, it must have been equally lawful for these British vessels to receive from the sloop in the same place a cargo of East-India or any other goods prohibited to be imported either from the United States, or in foreign vessels, into this province.
Again, if the conduct of the claimant in this instance can be justified, it must be equally lawful for a British vessel to lie at anchor off Moose-Island or Dudley-Island, at any place on the American side of the middle of these waters, and there discharge her cargo, of whatever articles it may consist, into American vessels, without entering at the American customhouse, or paying the tonnage, light or any other duty, or being subject to any penalty of the laws of the United States, on any account whatever.
Indeed there is no end to the absurd consequences that would necessarily result from an establishment of the defence set up by the claimant, and it must be evident that the only rule that can be laid down consistently with the laws of, and the treaties between, the two nations, is, that there can be no trade lawfully carried on in these waters between the vessels of his majesty's subjects and of the subjects of the United States, which it would not be lawful for the former to carry on in the ports and harbours of the United States, and for the latter, in the ports and harbours of his majesty's dominions.
This would leave the right of navigation free, and the waters entirely open to both parties, for every lawful purpose; it would not interrupt any communication between the vessels of the same nation in any part of these waters, and would effectually prevent the violation of the laws of either; consequently, in whatever part of these waters either a British or American vessel should be found, the one directly or indirectly transgressing the laws of the nation of the other, it
must be lawful for the proper officer of the nation whose laws are transgressed to see those laws enforced by such seizures and prosecutions as are directed for that purpose.
Even the above rule is laid down, under the supposition, for the sake of the argument, that Moose-Island, Dudley-Island, and Frederick Island, belong to the United States, consider ing their possession as equivalent to a title in the present, dis
Well might his Grace the Duke of PORTLAND predict that although the doubt started on the part of the United States "primarily went only to a presumed right of water-way or "navigation to their moiety of the St. Croix, yet that it was "ultimately intended to deduce therefrom as a further consequence, a right to the Islands in Passamaquoddy-Bay, lying on the American side of such water-way or navigation," among which Islands, Campo-Bello, as we have seen, was included.
This prediction we now see amply verified, in the course of six years from the date of his letter, and if such claims are submitted to, the tacit acquiescence of Great-Britain in these assumptions will soon come to be looked upon as an absolute acknowledgment of the title, and we know not what farther pretensions may be advanced and persisted in, in the same
Although, if the foregoing reasoning be correct, it is totally immaterial in what particular part of the waters in question the sloop now under prosecution was lying, at the time her cargo was laden on board, whether on the British or American side of the supposed line agreed upon by the customhouse officers of the two nations, I will nevertheless proceed to examine the evidence upon this point; premising that the testimony taken on the part of the prosecution has been principally with a view to shew the importance of the trade thus (as we contend) illegally carried on, and the extent of the mischiefs and inconveniences resulting to the British trade and commerce, from the practices avowed and justified in the claim now before the court.
So alarming indeed have been the effects of these injurious practices, that they have claimed the serious attention of the house of assembly of the province, who, in their session in February, 1803, passed the following resolution:
"Resolved, that an humble address be presented to his ff excellency the lieutenant-governor, requesting that he will
"be pleased to state to his majesty's ministers the necessity of "an act of the British parliament, compelling masters of ves"sels lading plaister of Paris or Grind-stones at the mines "of Nova-Scotia, New-Brunswick, and in the Gulph of St. "Lawrence, to give bond to the officers of his majesty's cus 66 toms in the different ports where the same shall be laden 66 on board, not to land or unload the same in any port or "harbour in the American States to the northward and east"ward of Portland, in the state of Massachusetts, or in any "British port, but for the purpose of being re-shipped on "board British vessels, who shall give bond as before-men❝tioned, not to land the same in any port or harbour of the "United States of America, to the northward and eastward "of Portland, in the State of Massachusetts.”
In answer to which address, his excellency was pleased to say, "that representations would be made to his majesty's "ministers accordingly,"
[The testimony in the cause was very voluminous, and principally tended to shew on the part of the claimant an agreement made about six years ago between Mr. Dunn, the acting British custom-house officer at St. Andrews, and Mr. Delesdernier, the American custom-house officer at Passamaquoddy, that British and American vessels lying in any part of the waters outside of the points or head-lands which form the harbours either on the British or American shores, that is, of Dudley and Moose Islands on the American side, and of Campo-Bello Island on the British side, should be considered as lying in waters wholly neutral, free or common for both nations, and might lade or unlade their cargoes without interruption or seizure by the officers of either government; which agreement was fully proved by the custom-house officers on both sides, and the practice agreeably to such agreement was also proved by them and many other wit
Upon the cross examination of the claimant's witnesses, it appeared that it was a common practice-till within the last two or three years for American vessels to take their cargoes on board from the shores and wharfs of CampoBello Island, but that such practice was not known or assented to by the British custom-house officers; that this practice was interrupted and put a stop to by the frequent visits of the Union cutter under the direction of
Mr. Leonard, the prosecutor in the cause. It appeared farther in evidence that for several years past it has been and still is customary to permit the loading of American vessels, lying close off any of the coves or harbours on the British side, by taking in their cargoes with boats, gondolas and small craft from the wharfs and shores on Campo-Bello Island, provided only that such American vessels do not lie within a line drawn across the points forming such coves or harbours. To this point one of the claimant's witnesses deposed," that he had seen, as "he supposed, near an hundred vessels of the United "Sates taking in plaister from British vessels in Snug "Cove, three, four, and five years ago; but that such "practice has not been so frequent of late, for fear of the "Union cutter. Four or five others of the claimant's "witnesses also testified "that this practice was discon"tinued by reason of the Union cutter coming often in "the way.
With regard to the sloop Falmouth, it appeared in evidence, that the said sloop upon her arrival from her last voyage from Portland in the State of Massachusetts, anchoredat the place where her cargo was taken on board, off Snug Cove, but on the outside of a line drawn across the mouth of the cove from one to the other of the points or head, lands forming the said cove; and that she was much nearer to Campo-Bello Island than to Dudley-Island. The American custom-house officer, one of the claimant's witnesses, who was on board her, upon his cross-examination says, that she was lying "without a line drawn across Snug Cove, and in the neutral waters described in the agreement." It also appeared that the sloop never altered her situation in any respect, nor took up her anchors from the time of her first arrival there till she was taken possession of by the cutter; that upon such her arrival she entered at the American custom-house in that neighbourhood, and took out the foreign clearance, before recited, for St. Andrews; that the two British vessels from which the cargo of the sloop was laden on board, arrived from the province of NovaScotia, and came to anchor in the same waters near to the place where the said sloop came to an anchor; that these British vessels entered at the British custom-house kept at Campo-Bello; and that the sloop and British vessels being along-side of each other in these waters, the