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sloop received the cargo in question from these British vessels; that the sloop was taken possession of by Mr. Charles E. Leonard, commanding the Union cutter, as a deputy to Mr. Leonard the prosecutor, in his office of superintendent of trade and fisheries, and brought to the harbour of St. John, where she was formally seized by the prosecutor, and libelled in this court.
It also appeared that this was the usual mode of carrying on the trade, and was strictly in conformity with the agreement of the custom-house officers before-mentioned; and that the British and American vessels under this agreement were permitted to interchange their cargoes in these waters in the manner before mentioned, without molestation or seizure by the custom-house officers of either government.
The distance between Dudley Island and the nearest headland of Campo-Bello Island appeared by a map admitted in evidence by both parties as correct, to be upwards of three quarters of a mile, and between Moose-Island and Campo-Bello Island nearly two miles.
With regard to the foreign clearance, Mr. Delesdernier, one of the claimant's witnesses, testified as follows, "that "the claimant applied for and obtained a foreign clear"ance for the sloop for St. Andrews, in ballast and stores. “That it was not intended nor necessary to proceed "to St. Andrews in consequence of such clearance, it being customary to grant such clearances to American "vessels taking plaister, to entitle them to a re-entry in the 66 ports of the United States-That by such clearance the "American vessel is enabled to receive plaister from a "British vessel without obliging such British vessel to enter "at the American custom-house. That all British vessels "entering at the American custom-house are subject to <c a duty of one dollar per ton.-That the American ves"sels after obtaining these foreign clearances, without "any removal or altering their situations in any respect, ❝proceed to take their cargoes on board from British "vessels, and thence proceed to any part of the United "States."
From the testimony of the British custom-house officers it appeared, "that the British vessels in which the plaister "of Paris is imported from the upper parts of the Bay # of Fundy, into that part of the British territory borz
"dering upon the United States, regularly enter and "clear at the British custom-house." With regard to the western passage into Passamaquoddy Bay, so frequently alluded to, John Mills, a witness produced on the part of the prosecutor, deposed, “ that he is a branch pilot for the port of St. John and " in the Bay of Fundy, and has been so employed nearly "since the first erection of this province of New Bruns"wick, and that he is well acquainted with the western "passage into Passamaquoddy Bay, otherwise called St. "Andrew's Bay, by West Quaddy Head, so called, and "that the said western passage is the passage generally, "and almost in all instances, made use of by American "vessels trading and navigating to and from Moose "Island, the river Cobscook and the river Scoodiac— "that the said western passage is much more convenient "than the eastern passage for American vessels trading
and navigating to and from the places above mentioned, "because the said western passage is a much shorter "route to the said places than the eastern passage, and "also because the American custom-house is situated on "the said passage nearly about the centre of the narrow part of it, and the said custom house is very difficult "of access to all vessels coming through the eastern 66 passage aforesaid, and it is the opinion of this depo"nent, that the said American custom-house is thus "situated as aforesaid for the convenience of the American vessels coming through the western passage aforesaid, and that he has very seldom known such "American vessels to make use of any other than the "western passage aforesaid—that it sometimes happens "when such vessels are bound into the places above "mentioned, and have the wind from the Northwest, "that they will come through the eastern passage afore"said, as such northwest wind is directly a-head for "them in coming through the said western passage. "That there are shoal grounds consisting of muscle banks "extending nearly across the said western passage, "but that such shoal grounds do not impede the na"vigation of vessels in the said passage when the tide "is in; that he the deponent, as a branch pilot as afore"said, once piloted a ship of about three hundred tons "burthen, and drawing as much as fifteeen feet of wa
"Island aforesaid and Spruce Island, so called, into the Bay of Fundy."
passage or channel last above described by Mr. Mills, is the same which he calls the eastern passage in his de
ter, as nearly as this deponent can recollect, through "the said western passage at high water, and with the "wind from the northwest, such wind being directly "fair for vessels going down through the said passage "that he this deponent has been informed by pilots at "St. Andrews, and believes, that they the said pilots "have frequently piloted ships of three and four hun"dred tons burthen, through the said western passage, "without danger or difficulty, when the tide was in "and the wind fair-that he the deponent does not "consider the said western passage as safe and con"venient for ships or vessels of any considerable bur"then, unless the tide is in and the wind fair-that at "half tide with a fair wind, the said western passage is "safe and convenient for vessels from seventy to one "hundred tons burthen, and that in the channel of the "said western passage at high water, there is upwards "of twenty feet depth of water-and this deponent "further saith, that he has known American vessels 16 frequently to anchor in West Quaddy Bay, so called, "and there to wait until the tide should make, and "there should be a sufficient depth of water to carry "them through the said western passage.
Mr. Mills, upon his cross-examination on the part of the claimant, says, "that the course of the principal chan"nel from that part of the river St. Croix, (otherwise "called the Scoodiac) between Joe's Point near St. An"drews and the opposite shore to the first waters, which "are called the Bay of Fundy, is as follows, viz. from "Joe's point aforesaid, to Clam Cove Head, so called, "the northwestern extremity of Deer Island, so called, "thence between Deer Island aforesaid, and Moose "Island, so called, thence leaving Marvel Island, so call❝ed, on the larboard hand, between Wind-mill Point, "so called, the northwestern point of Harbour de Lute, "so called, and a small island called Pope's Folly, thence "between Casco Bay Island, so called, and Campo-Bel"lo Island, so called, thence between Head Harbour, "so called, the eastern extremity of Campo-Bello "Island aforesaid and Spruce Island, so called, into the "Bay of Fundy."
This passage or channel last above described by Mr. Mills, is the same which he calls the eastern passage in his de