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A claim has been put in by EBENEZER LOCK, the late master, in behalf of himself and others, protesting against the right of Mr. LEONARD to make the seizure, and alledging that the said vessel was laden, either within the territories of the United States, or in waters held neutral between Great-Britain and the United States.

The objection to Mr. LEONARD's right to make the seizure having been over-ruled by the court, the merits of the cause have been very elaborately and ably discussed both on the part of the libellant and claimant.

It now devolves on me to give my opinion; in doing which, I cannot but acknowledge, that I feel a painful solicitude. This is a cause that has arisen from the conter◄ minous situation of the waters that divide this province from the United States, and involves a territorial claim, of course important; a cause of some expectation, and in its consequences highly interesting. Whatever may be the peculiar hardships that will attend the decision of the cause, however innocent may have been the intentions of the claimant, they cannot have any influence with the court; for to inclinations and feelings the court has no power to give way. If I err in my opinion, I have the consolation, that my intentions are just; and that the sentence of this court is not final, as an appeal lies to another tribunal, where the error can and will be rectified.'

It is admitted that the sloop is an American vessel, owned and navigated by citizens of the United States; of course a foreign vessel, owned and navigated by foreigners. The question then arises, can such foreign vessel enter any of the ports or harbours of this province, being one of his majesty's British North American colonies, and carry on commerce in the same? It is acknowledged that every nation has a right to make whatever commercial regulations it may think proper, and in the exercise of this right Great-Britain has thought fit to assume to herself the monopoly of the trade of her colonies; for this express purpose several statutes have been passed, in which the legislature seems to have had this object constantly in view. By the statute of 12 Car. 2. c. 18. otherwise called the navigation act, the palladium of British commerce, which, to use the words of Adam Smith in his inquiry into the cause of the wealth of nations," is perhaps the wisest of all the commercial regu"lations of England," all ships of which the owners, mas

ters, and three-fourths of the mariners are not British subjects, are prohibited, upon pain of forfeiting ship and cargo, from trading to the British settlements and plantations in Asia, Africa, or America. By this act England first established the monopoly of her colonial trade, since which farther provisions have been made by the statutes of 15 Car. 2. c. 7. and 7 & 8 W. 3. c. 22. By these statutes therefore all foreign vessels are prohibited from trading within this province of New-Brunswick, being one of his majesty's provinces in British North-America.

The United States then having no right by virtue of these statutes to trade with this province; it will next be inquired, whether they can derive such right from any treaty or convention with Great-Britain. Vattel says, 66 a nation not

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Vattel, having naturally a perfect right to carry on a commerce b. c. & "with another, may procure it by an agreement or treaty. §. 93. "This right is then acquired only by treaties, and relates "to that branch of the law of nations termed conven"tional; the treaty that gives the right of commerce, is "the measure and rule of that right. By the treaty of peace the United States most certainly were not allowed to carry on any trade with the British colonies; and although by the treaty of amity, commerce, and navigation, between his majesty and the United States, regulations were made for governing the trade between the United States and his majesty's dominions in Europe, and the British possessions in the East and West-Indies, and also, "the inland naviga"tion between the territories and countries of the two par"ties on the continent of America;" yet no provision was made by which the citizens of the United States are permitted to trade with this province, or their vessels admitted into the sea-ports, bays, or creeks of his majesty's North American territories, or into any of the rivers below the highest port of entry from the sea. It is evident, therefore, that they have not naturally a right to the trade now in question; and that they do not derive such right by treaty or compact, provided the same has been carried on within the limits of this province. This therefore leads me to inquire into the boundary line between this province and the United States, the great point in the cause. If the uniform principle that has governed the parent state has been to exclude all foreigners from her colonies, in order that she might assume the monopoly of the colonial trade; is it to be pre

Martens

b. 4.

§. 4.

sumed that she would allow the limits of this province to remain so indefinite and undetermined as to admit foreign vessels within its ports, and permit them to carry on a commerce in direct violation of the navigation act, and the other laws of trade?

I

Whatever may be my private opinion with regard to the exclusive right of Great-Britain to the islands lying in Passamaquoddy-Bay, so called, and now in the possession of the United States, it cannot have any weight in this cause. must be governed by the facts which exist. By referring to the charts, which by consent have been used in explanation of the arguments in the cause, I find, after leaving the mouth of the Scoodiac, or St. Croix at Joe's Point, as determined* by the commissioners under the fifth article of the treaty of amity, commerce, and navigation, a passage through which the main waters of the river are said to flow, and by which they are discharged into the Bay of Fundy. This passage or channel is formed on the eastern side, by Deer, Marvel, and Campo-Bello Islands, and on the western side by Moose, Dudley, and Frederick Islands, and in some places by the continent. This province claims and exercises jurisdiction over the islands forming the eastern side of the channel; which islands are in the possession of his majesty's subjects, inhabitants of the province of New-Brunswick. The citizens of the United States are in possession of Moose-Island, DudleyIsland, and Frederick-Island, over which the United States claim and exercise undisturbed jurisdiction. I know of no public act of our government from which I can infer its denial of the jurisdiction exercised by the United States over the islands on the western side of the channel, or a disavowal of the right claimed by them to the same; I am therefore to consider this passage or channel as conterminous, and dividing this province from the United States. The question then, to whom does this channel or passage belong? must be referred to the general law of nations, and for its decision we must have recourse to the principles laid down by the most able and distinguished writers on the subject.

"Every nation," says MARTENS, "has a right to pro"perty and dominion as far as the middle of all the lakes "and rivers that are situated on its frontiers, at least till "the contrary has been proved, or till another decision has "been agreed upon."

See Appendix, No. II.

66

66

4. c. 4.

PUFFENDORFF says, that "the gulphs and channels, or Puffen "arms of the sea, are, according to the regular course, sup- dorff,b. "posed to belong to the people with whose lands they are §. 8. encompassed; but in case different nations border on the 66 same channel, the sovereignty of each shall be conceived to reach into the middle of the water from every part of "the respective shore, unless either all the estates have 66 agreed by covenant to use the whole water promiscuously among themselves, and to exercise a general undivided "sovereignty over it against foreigners, or else if one par"ticular people has obtained a dominion over the whole "by pact or the tacit confession of the rest, or by the right "of conquest, or because they fixed their station near it, " and immediately took it in full possession, exercising acts "of sovereignty over the people of the opposite shore; in "which latter case nevertheless, the other neighbouring

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states, their fellow borderers, shall be supposed to be "lords each of their particular ports, and of so much of the 66 sea as the convenient access to the shore requires."

b. 2. c.

3. §. 18.

GROTIUS says, "though, in case of any doubt, the juris- Grotius, "diction on each side reach to the middle of the river, yet "it may be, and in some places it has actually happened "that the river wholly belongs to one party, either because "the other nation has not got possession of the other bank till ❝later, and when their neighbours were already in complete "possession of the whole river, or else because matters "were so stipulated by treaty."

VATTEL says,

oppo

Vattel, b. 1. c.

"that of two nations inhabiting the "site banks of the river, if neither party can prove that 22. §. "they themselves or those whose rights they inherit were 266. "the first settlers in those tracts, it is to be supposed that "both nations came there at the same time, since neither "of them can give any reason for claiming the prefer66 ence; and in this case, the dominion of each will extend ❝to the middle of the river."

From these writers we derive this general rule of the law of nations, that when two neighbouring nations inhabit the opposite banks of a river, the dominion of each will extend to the middle of the stream. There are some exceptions to this general rule: but do these exceptions prevent its application to the passage, which is part of the boundary line between this province and the United States? certainly not in fayour of the American government. The inhabitants of

these states, when they formed a part of the British empire, had a right in common with his majesty's subjects, to navigate the waters now under consideration; but this power did not give them an exclusive possession, nor did they thereby acquire dominion over the whole. The mother country in acknowledging the independence of her revolted colonies, had a right to prescribe their limits; in doing which, she was bound to consult the interest and preservation of that part of her empire, which continued in its allegiance. The province of Nova-Scotia adhered to the cause of the mother country; the western limits therefore of that province, it is presumed, were by the treaty of peace made the eastern boundary of the United States; and the exception in the treaty of such islands, as before or at the time of the treaty of peace were within the limits of the province of Nova-Scotia, strengthens this presumption. By these limits, therefore, must the United States be governed. That they considered Deer, Marvel, and Campo-Bello Islands as once forming a part of the province of NovaScotia, and that they do now consider them as being within the jurisdiction of this province of New-Brunswick, is evident, from their allowing his majesty's subjects to remain in the undisturbed possession of them. To place this question, therefore, on the broadest ground, and in the most favourable point of view for the citizens of the United States, I will consider them, the moment their independence was acknowledged by the mother country, in the character of a sovereign people, and in the possession of the western side of the channel now in dispute; that his majesty's subjects were in the possession of the eastern side; and that neither possessed an exclusive right to the waters of the same. The application of the general rule of the law of nations to this case then will lead me to conclude, that the boundary line between this province and the United States is a line to be drawn through the middle of the channel that divides them, and to which the jurisdiction of each will extend. I am strongly confirmed in this conclusion by that part of the description of the boundary of the United States, in the second article of the treaty of peace, which says, "East by a line to be drawn along the middle of the "river St. Croix," &c. The commissioners, who made

* Sed quere, vide Appendix, No. I,

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