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position upon the direct interrogatories, and is the same that is described by Judge Benson, and recited in the former part of this argument.
The whole of the testimony in the cause was discussed very much at large, when the argument was concluded with the following animadversions upon the foreign clearance and the observations subsequent thereto.
The minutes of that part of this argument, which precedes the introduction of the testimony, were made before I had looked into any part of the testimony, and so extravagant at that time appeared to me such a right as now appears to have been in the contemplation of the claimant, that barely shewing it to be a necessary consequence of the doctrine which I then supposed would be the utmost that would be contended for in the claimant's defence, was in my mind an irresistible proof of the absurdity of that doctrine; but to my surprise, I now find, that the claimant's defence rests in the broad assertion of that right as legally vested in him, not only by usage and custom, but even independently of such usage.
This makes it necessary for me to inquire farther into the legality of the right thus claimed, and to show the absurdities necessarily resulting from such claim.
Mr. Delesdernier testifies, "that with a view to the ease "and accommodation of persons concerned in navigation, he "about six years ago entered into a tacit agreement, with the "officers of the British customs at Passamaquoddy, for a "neutral line, or rather limits, between which vessels of both "nations might safely lie at anchor and receive or discharge "their cargoes, which lines or limits were understood to lie "between the head-lands of Campo-Bella on the one side, and "the head-lands of Dudley and Moose Islands on the other "side." He afterwards says, "that in consequence of these "arrangements, he has considered that such British vessels 66 are in neutral waters, and not subject to tonnage or other "duty." So that, had it not been for this tacit agreement, these British vessels would have been subject to the tonnage and light duty, amounting together, as he testifies, to one dollar per ton. This is certainly a very extraordinary power to be assumed by a custom-house officer, to dispense with the laws of his country.
It seems that the tacit agreement, arrangement, or accommodation treaty, which Mr. Delesdernier here speaks of in consequence of which, he was no longer to consider British
vessels in these neutral waters as being subject to the Ameri can duty of one dollar per ton, could not be carried into effect without the contrivance of the foreign clearance, by which the British vessel was to be discharged from the payment of this duty.
The British vessel, if considered as being in American waters, must enter at the American custom-house, and pay the duty, otherwise such vessel could not be permitted to discharge her cargo into an American vessel in these waters.
If considered as being in British waters, such vessel could not be permitted by the British custom-house to discharge her cargo into an American vessel at all.
To get over this difficulty, the American vessel arriving in these waters, is, in the first instance, considered by the American custom-house as being in waters wholly American, and is accordingly required to enter at the American customhouse, in the same manner as the British vessel arriving in the same waters is in the first instance considered by the British custom-house as being in waters wholly British, and accordingly required to enter at the British custom-house.
The next step is for the American vessel without discharging any part of her cargo, (if she happen to have a cargo on board to give in exchange for the British plaister) and without any alteration in her situation, after having entered from her last voyage at the American custom-house, to apply for and obtain as a matter of course from the same custom-house a foreign clearance for St. Andrews, for the same vessel.
The American vessel and the British vessel, which under this accommodation treaty are respectively to lade, unlade, and exchange their cargoes in these waters, which at this period of the process are instantaneously neutralized, are at length brought into contact with each other.
The operation of the foreign clearance is now wonderful, without any removal or alteration of the situation of either of the vessels in any respect, from the time of their first arrival in these waters and entry at the custom-houses of their respective nations; on a sudden, these waters to the American vessel become foreign and British; this vessel is under clearance for St. Andrews, but not bound or intended for St. An drews, which is confessedly on all hands a British port in the province of New Brunswick; but she cannot re-enter at any port in the United States, without evidence that the cargo of plaister, being an article of foreign growth, which she is
to take on board from the British vessel, was actually laden on board in a foreign port, as it would be otherwise liable to seizure for non-payment of the tonnage and light duty. This foreign clearance then, to the American vessel, transforms these waters from American or neutral, to British, while the same waters to the British vessel remain neutral, and farther becomes legal and satisfactory evidence at any port of the United States, to which the American vessel carries the plaister, that it was actually taken on board at St. Andrews in the British province of New Brunswick, and in the last stage of its potent influence, intitles this American vessel to a reentry in such port.
Farther, this foreign clearance thus made complete and legal evidence in any port in the United States to which the cargo shall be carried, that such cargo was actually laden on board the sloop in a British province, is applied for and obtained by the claimant for the avowed purpose of depriving the American revenue of the tonnage and light duty.
Most righteously then shall the same clearance be considered in this court as complete and legal evidence of the same fact, for the purpose of preventing a violation of the British laws with impunity.
This consideration destroys every idea of hardship, and all pretensions to indulgence on the part of the claimant in the present cause, for a more gross abuse of public documents cannot well be conceived than is exhibited in the instance of this foreign clearance.
It may not be improper here to remark the absurdity of the application of the epithet neutral to these or any other waters in a similar situation; so far from being neutral, or belonging to neither power, by the claimant's own shewing they must be considered for the acomplishment of his purposes as wholly and altogether British. But although what is contended for on the part of the claimant would not render these waters neutral, it would nevertheless operate to the extent of making them to be free ports in the territories of both nations, in which the operation of all the laws of both countries would be completely annihilated; which is a state that it has hitherto required the act of the supreme legisla ture of a nation to create within its dominions.
Before I quit this part of the argument, I must again bring to the recollection of the court, that my whole reasoning upon the testimony in the cause has been predicated upon a sup→
position, for the sake of the argument, that the possession of Moose, Dudley, and Frederick Islands, the three islands in question, by the subjects of the United States, is equivalent to a title in the present discussion.
But when it is taken into consideration that these islands do of right belong to Great Britain in full property, and that the possession of them has been wrongfully taken and withheld by the subjects of the United States, the argument becomes infinitely stronger respecting the waters in question; for it would be an extravagent position, that a wrongful possession de facto of these islands should give a constructive possession de jure to the whole or to any part of these waters.
It remains now in some way to account for the agreement made by the custom-house officers of the two governments, and the foreign clearance, which have been disclosed in the testimony in this cause; in doing which, we must retrace the plaister trade to its origin, and consider its magnitude and importance at the present day.
It is well known that the mines or quarries of plaister of Paris in the uppper parts of the Bay of Fundy within the British provinces of Nova Scotia and New Brunswick are inexhaustible.
It is equally well known that it is now become almost an indispensable article in agriculture in all the United States to the westward and southward of Connecticut ; barren and exhausted soils by the aid of this plaister, as a manure, become fertile and productive, and are so permanently improved by it, that many of the land-holders there have been known to say, that rather than be without it, they would give for it twenty dollars, and some go so far as to say, fifty dollars per
From the first settlement of this province the British vessels here have been employed in carrying this article to part of the United States, where it has been in so great demand: for several years it commanded a very con siderable price; ten or twelve years ago, it brought from ten to twelve dollars per ton in New-York and Philadel phia; and if British subjects in British vessels were, as they ought to be, the sole carriers of it to the places of its consumption, it would, without doubt, prove a source of wealth to those provinces, of encouragement to their settlement, and to their commercial and maritime concerns, and conse«
"sequently become important to the interests of the British empire.
It is ascertained that in the year 1791, the plaister trade had not commenced at Passamaquoddy; even so lately as in the year 1794, only about 100 tons of this article were imported from the upper parts of the Bay of Fundy to Campo-Bello; in the year 1795 about 250 tons: from that time to this it has been gradually increasing, and the average is now, from the best information that can be had upon the subject, very little, if at all, short of 14,000 tons per annum.
It appears from the testimony of the clerk of the British custom-house at Passamaquoddy," that during the present "year there have been imported into Passamaquoddy from "Nova-Scotia, about 10,000 tons in fifty vessels by com"putation from the custom-house books in his possession," and we know that there was a considerable suspension of this trade in the course of the summer, occasioned by a fear of impressment from his majesty's sloop of war, the Busy, which was for some time stationary there.
From a correct account kept in the year 1802, it appears that from the 20th of March, to the 20th of December in that year, there were 13,155 tons thus imported, and that there were several other vessels so importing it in that year not included in that account; from whence there is good reason to believe that the annual average does not fall much short of 14,000 tons.
A respectable witness on the part of the claimant, states, "that he thinks the great demand has been the cause why "the plaister is not now landed at Campo-Bello, as the "British vessels have now the opportunity of loading "the American vessels in the stream;" so that it appears on all hands that this is a very increasing trade.
We know that many British vessels from this port of St. John are constantly employed in carrying great quantities of plaister to the places of its consumption in the United States, probably not less annually, at a very moderate computation, than 10,000 tons; but the owners of these vessels complain, that unless the traffic in this article so extensively carried on in the manner above described at Passamaquoddy is put a stop to, they must dispose of their vessels and quit the trade; and the reasons are, that the