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the treaty, appear to have adopted the same rule that governs the decision of this court.
It has been urged that the west passage lying between Campo-Bello and Dudley and Frederick Islands, is unfit for the navigation of vessels of any burthen, as a bar extends across it in one place, over which at low water there are about four feet of water only; and as the principal channel from the Bay of Fundy into the river St. Croix lies to the eastward of Campo-Bello, it has from thence been inferred, that the waters to the westward of such channel, or lying between Campo-Bello and Dudley and Frederick Islands, are wholly within and belong to the United States; or that they are the waters of the river forming the boundary between his majesty's dominions and the United States, and as such neutral as they are termed, and common to both nations. It appears in evidence, that the west passage is a considerable channel at high water, at which time there are twenty feet of water on the bar; that a ship of 300 tons burthen has passed through it; and that it is the passage principally made use of by the American vessels. But allowing that the passage to the eastward of Campo-Bello is the principal channel into the St. Croix, and more fit for navigation than the west passage, and that Great-Britain should admit the American vessels to the free navigation of it; would such admission convey the dominion of the passage to the United States, and with it, a right to the whole of the west passage, and the waters lying between Campo-Bello and Dudley and Frederick Islands? With equal propriety it might be said, that Denmark cedes the dominion of the Sound, by permitting the vessels of other nations to pass through it; or that Turkey yields the sovereignty of the Dardanelles, when she allows the ships of GreatBritain or Russia to pass the same. The west passage of the channels into the St. Croix, and is a part of the boundary between this province and the United States, to the middle of which I conceive that the jurisdiction of each must extend; of course the waters cannot be common for any other purposes than those of navigation.
I come now to the evidence adduced in this cause, which was very voluminous; and I shall only touch upon those points, which appear the most material.-It appears that about six years ago an agreement was made between the deputy of the custom-house officers for this port of St. John,
and the American collector, that the waters between CampoBello Island and Dudley Island, or, in other words, those waters that lie within two lines commencing at the American custom-house (which is situated on the American side of the west passage), the one ranging from thence with the heads or points of land that form Snug Cove on the Campo-Bello shore, the other with the outmost heads or points of land on the American shore, should be considered neutral as they are termed, or common to the vessels of both nations, in which they might lade or unlade their cargoes, and that this agreement was assented to by the officers of his majesty's customs for this port, by virtue of which agreement the American vessels, have been accustomed to anchor off Snug Cove, and take in their cargoes from British vessels lying in the stream. That previously to the American vessels taking in their cargoes, they obtain a foreign clearance for St. Andrews, a place within the jurisdiction of this province, from the American custom-house; and that the British vessels, which arrive at Campo-Bello from the upper parts of the Bay of Fundy, laden with plaister, report at the British custom-house kept at Snug Cove by the clerk of the deputy collector.
As to the situation of the sloop at the time she was seized, it appears by the mate and two of the hands of the cutter, who were present at the time, that she was lying at anchor within a line drawn from Friar's head and the south-west head, the two heads or points of lands which form Snug Cove, of course within the cove. Some remarks have been made as to the credit of these witnesses; I cannot but observe that their testimony stands fair before the court, and is corroborated by one of the witnesses produced on the part of the claimant, who says, that sometimes the sloop swang in the British lines, at other times within the American bounds; one of the hands belonging to the sloop also says, that she was lying rather within the British line when she was seized. It might not have been the intention of the claimant to have anchored his vessel within Snug Cove; I do not think that it was, but the place where the vessel came to, and from which she was not moved until after she was seized, was so near the line extending from Friar's head to the south-west head, that I have no doubt with the scope of cable some of the witnesses say the vessel had out, she sometimes tended with the wind or tide over the neutral line as it
is termed, and within the outermost heads of Snug Cove. This is not material; the question is, was she on the British side of the line running through the middle of the stream? When the witnesses of the claimant speak of the place where the sloop came to anchor and was seized, they mention uniformly her situation as relative to Campo-Bello Island; that she was at the mouth-off the chops-and was lying off of Snug Cove. She is invariably mentioned as being nearer to Campo-Bello than to Dudley Island; some say one-third nearer, others about one hundred rods from the shore of Snug Cove. By the charts before the court it appears that the distance from Campo-Bello Island to Dudley Island, is about three quarters of a mile; and from the whole of the testimony it evidently appears, that the sloop took in her cargo, and was lying when seized near the Campo-Bello shore, and within the British waters. I cannot but observe here, that the line which was at first established by the British custom-house officers for this port and the American collector as the limit of the neutral or common waters on the Campo-Bello side, has, by some of the witnesses, been considered as the boundary of the British and American waters, and that those to the westward of this line belong to the United States; such has been the effect of the American vessels being allowed to take in their cargoes in the waters near the Campo-Bello shore. I shall now consider a paper which was found on board the sloop, termed a foreign clearance, and obtained as is stated in the claim for the purpose of enabling the said sloop to proceed off Snug Cove, there to anchor in the stream, and take in her cargo from vessels also lying there. This clearance expressly mentions the sloop Falmouth, as "bound for St. Andrews," a place evidently within the jurisdiction of this province, and where she could not be permitted to enter. It has been argued that this paper was obtained to enable the vessel to a re-entry in the ports of the United States, as plaister of Paris is an article of foreign growth; and that all the American vessels which take their lading out of British vessels lying in these neutral waters obtain such foreign clearances. These vessels, at the time of their lading, must either be within the American territories or without; if they are within, the effect of their clearances is to defraud their own government, by depriving it of the tonnage duty, which the British vessels would be obliged to pay, before they could be allowed to unlade their plaister; for if it
was duly imported, it would not be necessary to procure the foreign clearance to entitle them to a re-entry in the ports of the United States; if without the limits of the United States, they must be within the British waters. I cannot suppose that the American collector would be guilty of a fraud against the revenue of his country; and am therefore to conclude that by this foreign clearance, obtained from the American custom-house, in which the destination of the vessel is mentioned, she was considered as being bound into waters foreign to the United States. By viewing the clearance in this light it is a confirmation of the testimony in the cause, and carries with it a conviction, that the sloop when seized was within the British waters, and that the foreign clearance was obtained to enable her to go there. As to the agreement between the custom-house officers for this port of St. John, and the American collector, by which the waters between Campo-Bello Island and Dudley Island were considered free and common for the vessels of both nations to lade and unlade in, I am clear that no such agreement can be binding on this court.-When the officers of his majesty's customs assented to this, they considered the boundary line between this province and the United States as undetermined; and I have no doubt they were actuated by the most honourable motives, and supposed themselves as acting within the strict line of their duty.It has been contended that this is a case of extreme hardship, that the intentions of the claimant were innocent, that he was pursuing a course of trade that had for some years past received the sanction of the British custom-house officers, and that a great many American vessels had been allowed to take in their cargoes at the place where this vessel was seized.-But are the circumstances of this case so peculiarly hard as to authorise the court to depart from the law, when those in the case of the Hoop, Cornelis, Master, 1 Rob. 196, would not? In that case the parties acted under the advice of the commissioners of the customs at Glasgow, who previously to their giving such advice had consulted their own law advisers; in giving the sentence of the court, Sir William Scott says, "It appears that these parties "had before applied to the council for special orders, and "had always obtained them. It is much to be regretted "that they had not applied again to the same source of in"formation; instead of doing so they consulted the com"missioners of the customs, very proper judges to ascertain
what goods might be imported under the revenue laws; but "this is a matter of general law, on which they are not the
persons best qualified to give information or advice. The "intention of the parties might be perfectly innocent; but "there is still the fact against them of that actual contraven❝tion of the law, which no innocence of intention can do away. I may feel greatly for the individuals who, I have 66 reason to presume, acted ignorantly under advice that they "thought safe; but the court has no power to depart from "the law which has been laid down.' The British customhouse officers in assenting to the line of the neutral or common waters on the Campo-Bello side, exceeded their authority as officers of the customs, by determining a matter of general law..
There is another principle of law, which I think applicable to the present case, recognised by Lord Mansfield, in the case of Berens v. Rucker. 1 Black. 313, in which he says, "The "first question is, whther this was a just capture. Both ❝ sentences are out of the case, being done and undone by consent. The capture was certainly unjust; the pretence was, that part of this cargo was put on board off St. Eustatias "out of Barks supposed to come from the French Islands, and "not loaded immediately from the shore; this is now a settled " point by the lords of appeal to be the same thing, as if they "had been landed on the Dutch shore, and then put on "board afterwards." It is admitted that the sloop Falmouth took in her cargo off Snug Cove out of two British vessels lying in the stream. These vessels, it appears, came from the upper parts of the bay of Fundy, laden with plaister, arrived at Campo-Bello, and of course must be presumed to have entered at the custom-house at Snug Cove. As these vessels were lying on the Campo-Bello side, they must have been within the British waters; and agreeably to the law as settled by the laws of appeal, the taking on board her cargo out of the vessels lying in the stream, amounts to the same thing as if it had been taken on board from the shore, and is a direct violation of the Navigation Act.
I am therefore of opinion, that the sloop Falmouth was laden within the British waters in contravention of the Navigation Act, and the statute of 7 and 8. W. 3. c. 22, and therefore decree the vessel and cargo to be forfeited;but considering the particular circumstances of the present case, I shall dismiss the claim without costs.