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American vessels are navigated at so much less expence than the British; that the small British coasting vessels employed in carrying the plaister to Passamaquoddy are suffered in the manner that has been stated by Mr. Delesdernier, to discharge their cargoes into American vessels, without paying the tonnage and light duty, which all the British vessels carrying the plaister to any other part of the United States are subject to, amounting to one dollar per ton; and lastly, that the American vessels are suffered in the same place in the waters in question, to lade their cargoes on board from British vessels, giving contraband articles in exchange, in open violation of the navigation act and the other British laws of trade.
If this practice be authorised by the government of the United States, and the foreign clearance in question be dictated by that government, it is only to be accounted for upon one principle, namely, that of procuring a foreign article of indispensable use in that country at a reduced price, and securing to its subjects the carrying trade in this instance, objects in comparison with which the tonnage and light duty are a trifling sacrifice.
Before the plaister trade in question commenced at Passamaquoddy, when its utility was not generally known in the United States, and the demand for it was comparatively small, this article was sold by the British vessels carrying it to New-York and Philadelphia, from 10 to 12 dollars per ton; it is now sold from 6 to 7 dollars per ton in those places, which makes a difference in the price of the article of 4 dollars per ton at the American market, besides yielding to American vessels the carriage of two-thirds of the quantity consumed.
If we suppose then 25,000 tons of this article in the whole to be annually imported into the United States, directly or indirectly from these provinces, which is a very moderate estimate, and probably much less than the quantity really so imported, there is a loss of 100,000 dollars per annum in the price of the article, exclusively of the other considerations above alluded to.
There is no doubt entertained by those who are most conversant and best acquainted with the subject, that instead of 25,000, the quantity of plaister annually imported into the United States from the British provinces, is very little if at all short of 50,000 tons, and that his majesty's subjects
in these provinces suffer a direct loss, in the price of the article only, of 200,000 dollars annually by this illicit traffic.
One circumstance within the knowledge of every one conversant in this trade, is, that if it happen in the spring of the year that there is no plaister at Campo-Bello in readiness for the American vessels, it immediately commands an extra price of three dollars per ton by the British vessels first carrying it to New-York and Philadelphia at such seasons; and even in the short interruption of this trade during the last summer, occasioned by his majesty's sloop of war, the Busy, being at Passamaquoddy, which deterred the British coasters from carrying the plaister during that time, from the fear of having their hands impressed; the British vessels carrying it to the States at once obtained an advance of one dollar per ton in the price; from which we may fairly conclude, if a stop were altogether put to this illegal trade, and the carriage of this article confined, as it ought to be, to British vessels, that not only a standing advance would be obtained in the price, of from 4 to 5 dollars per ton, but that a considerable proportion of it would be paid for in cash, and thereby the continual drain of specie from the province prevented, the inconveniences of which have of late been so sensibly felt.
But these are by no means the greatest inconveniences resulting from this trade; by the mode of carrying it on, if it be legal, as contended for by the claimant, a door is opened for the admission into these provinces, through this channel, of foreign brandies, spirits, teas, and every other article of prohibited commerce, to the ruin of the fair British merchant and trader.
How easy is it, I speak not without foundation on the subject, for any one concerned in this trade residing upon the island of Campo-Bello, or in any neighbouring part of the British territory, having once purchased a few chests of tea, and a few casks of spirits, that have been legally imported into these provinces with their appropriate marks upon them, to have them filled and replenished with the same commodities from these American vessels for years together, without a possibility of detection?
How many other ways are there of distributing these and other prohibited articles to all the inhabitants of these provinces upon the Bay of Fundy, the legality of such an
interchange of cargoes between British and American vessels, as is now insisted upon being once admitted?
The plaister trade may be said to be yet in its infancy, and the demand for it daily increasing. This article seems to be, among others, one of those bounteous gifts of Heaven to this country, calculated to encourage its settlement, promote its interests, and increase its consequence, if the advantages to be derived from it are duly attended to and secured.-The existing laws, I humbly conceive, are sufficient for the purpose, if properly enforced; but should I be mistaken in this, I hope that the discussion of this cause will give rise to other regulations from competent authority, which will enable us fully to avail ourselves of a source of prosperity, which promises ere long to be incalculable in its extent and beneficial consequences.
I mean not however to urge these as considerations to the court in pronouncing its decree in this cause, if the law be not with me ;-but if I am warranted in the principles I have endeavoured to establish, and the deductions I have drawn from those principles, it is just and fair to enforce my argument, by stating the mischiefs and inconveniences that would result from the establishment of the claim now before the court,
Well might this trade be thought an object of sufficient magnitude to merit the attention of the general assembly of the province; the same view of the subject and the same reasons which I here humbly submit to the consideration of the court, induced them to apply for the most effectual means of annihilating this trade by an act of parliament, to prevent the landing of plaister of Paris exported from these provinces, in any part of the United States, to the northward and eastward of Portland, in the state of Massachusetts, though it is much to be doubted whether any place to be named for this purpose to the northward and eastward of Connecticut river would prove an effectual remedy for the evils complained of.
I come now to the point of the cause from which I set out, namely, the charge in the libel, that the cargo of the sloop Falmouth, now under prosecution, was laden on board the said sloop in the county of Charlotte, in the province of NewBrunswick, and within the jurisdiction of this honourable court on the 22d of October last, the same sloop being a
foreign built vessel, not owned by his majesty's subjects nor navigated according to law.
That the sloop is not British, but foreign built, and owned and navigated by foreigners, is admitted on all hands. The only remaining question then is, whether this cargo was laden on board the sloop within this province.
I might possibly be justified in insisting that the claimant can no longer be permitted to controvert this fact, having submitted to the jurisdiction of the court; and that he should have availed himself of this ground of defence by a plea in abatement to its jurisdiction; for this court can have no jurisdiction of this cause unless the offence charged has been committed within the limits of this province; but waving this, I will briefly recapitulate the evidence there is in the cause of this fact.-It has then been shewn,
1. That all the islands between which the waters flow, in which the sloop was laden, belong to Great-Britain, as a part of the ancient province of Nova-Scotia, and as such expressly ́reserved by the treaty of 1783.
2. That the king's charter, erecting and establishing the county of Charlotte, and the act of the general assembly of the province for dividing this county into towns and parishes, have confirmed this fact by expressly including all these islands within this county, and within the parish of West Isles in the same county.
3. That if the right to these islands can be in any manner affected by the declaration of the commissioners under the 5th article of the treaty of amity, commerce and navigation, respecting the mouth of the river St. Croix (which I have endeavoured to shew it cannot be), this declaration confirms and establishes this right in Great-Britain.
4. That not only all these islands belong to Great-Britain, but that of necessary consequence the waters in question flowing between them also belong to Great-Britain.
5. The admitting, for the sake of argument, the possession which has been taken by the subjects of the United States of three of these islands, to wit, Moose Island, Dudley Island, Frederick Island, to be equivalent to a title to these islands in the United States, nevertheless, by the established principles of the law of nations, even in that case they can claim no right to any part of these waters beyond the middle line between Dudley Island and Moose
Island, in their possession on the one side, and Campo-
6. That even this claim by the same principles can extend to a right of water-way or navigation only, and not to a right of carrying on trade with British subjects and their vessels in those waters.
7. That admitting even that the United States have a right to trade in this manner as well as to navigate on their side of such middle line, it is proved by all the testimony in the cause, that the sloop in question was clearly on the British side of such middle line, and therefore without the protection of the law.
Presuming then that the court will be of opinion that the cargo of the sloop Falmouth was laden on board, within the limits of this province.
No doubt can remain, that this is an offence not only against the laws upon which the prosecution is more immediately founded, but against various other British acts of trade, and against the express provisions of the third article of the treaty of amity, commerce and navigation, between Great Britain and the United States.
To make a question whether this court will on the one hand consider itself as bound by these laws, or on the other by its decree sanction and legalize the custom and agreement relied upon by the claimant, and indeed his only ground of defence, by which not only these laws, but the laws of the United States are set at defiance, would be an insult which decency forbids me to offer.
[The counsel for the Claimant having been fully heard, and the cause closed on the part of the prosecution, his worship WILLIAM BOTSFORD, esq. judge of the court, pronounced his decree as follows.].
This is the case of the sloop FALMOUTH, an American Judge and foreign vessel, owned and navigated by citizens of the ment. United States of America, seized by GEORGE LEONARD, esq. superintendant of trade and fisheries in North-America, and a preventive officer in the service of his majesty's customs, for taking in a load of plaister of Paris at SnugCove, in the county of Charlotte and province of New Brunswick, contrary to the provisions and meaning of the statute of 7 & 8 W. 3. c. 22. and by him libelled in this court.