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I. The Claimant insists that by the Treaty of Peace be- Defence. tween His Majesty and the United States of America, con-cluded in 1783, the waters on which the Sloop was anchored and seized and taken, as stated in the Claim, are wholly within and belong to the United States, for the following reasons
1. Because the Eastern boundary of the United States is a line to be drawn along the middle of the river St. Croix, from its mouth in the Bay of Fundy to its source, &c.
2. Because the principal channel from the Bay of Fundy into the river St. Croix is to the Eastward of the said Island of Campo-Bello, and between Deer-Island and Moose-Island, lying to the Northward thereof.
3. Because all Islands within 20 leagues of any part of the shores of the United States, and lying between parallel due East lines to be drawn from the mouth of the river St. Croix and the mouth of St. Mary's river, are comprehended within the limits and boundaries of the said United States, except such Islands as at the time of or before the Peace of 1783 were within the limits of the Province of Nova-Scotia.
II. The second ground of defence is, that if the waters* in question are not wholly within and do not wholly belong to the United States, they are the waters of the River forming the boundary between His Majesty's dominions and the said United States, and as such neutral and in common for the vessels of both nations.
III. That the anchoring, lying, and loading with Plaister of Paris from on board British vessels at the place where the Sloop was seized, has been for a long time sanctioned by the concurrent assent of the Officers of His Majesty's Customs at this Port of St. John, and at the Port of Passamaquoddy, as a practice not prohibited by any of the existing laws of either of the two Countries.
IV. That the Claimant obtained a foreign clearance from the American Custom-House, to enable him to go with his Sloop, and anchor off Snug Cove, without the Points or Headlands forming the Cove, there to take in a cargo of Plaister of Paris from British vessels.
In answer to the first ground of this defence, I shall en- Reply. deavour to show to the Court,
1. That all the Islands in Passamaquoddy Bay, including Moose-Island, Dudley-Island, and Frederick-Ísland, do, of right, by the Treaty of Peace of 1783, belong to His Majesty.
2. That all the waters surrounding those Islands belong also to Great Britain.
3. That consequently a right of water-way, passage, or navigation only, can be claimed by the United States, from the main channel of the Bay of Fundy, to that moiety of the St. Croix, the boundary river, which is nearest to the American territory.
I shall then consider the three remaining grounds of the defence set up in the Claim.
1. I shall first endeavour to shew that all the Islands in Passamaquoddy Bay, including Moose-Island and DudleyIsland, do, of right, by the Treaty of 1783, belong to His Majesty.
To this end it will be proper to refer to that part of the 2d article of the Treaty which respects the point in question, after describing the termination of the interior boundary of the United States to be the Middle of St. Mary's river, where it touches the Atlantic Ocean-the words are these-" East "by a line to be drawn along the middle of the river St. "Croix, from its mouth in the Bay of Fundy to its source, &c. "-comprehending all the Islands within twenty leagues of << any part of the shores of the United States, and lying be"tween lines to be drawn due East from the points where "the aforesaid boundaries between Nova-Scotia on the one 66 part, and East Florida on the other part, shall respectively "touch the Bay of Fundy and the Atlantic Ocean, excepting "such Islands as now are or heretofore have been within "the limits of the said Province of Nova-Scotia."
No doubts have ever arisen what Islands were reserved to His Majesty by the 2d article of the Treaty of Peace; it was obviously and clearly intended by this article-that no part of the Province of Nova-Scotia should be thereby ceded by His Majesty to the United States, and in conformity to this evident intention, all the Islands that then were or theretofore had been within the limits of that Province, are expressly reserved to His Majesty.
Some doubts however had arisen, what river was truly intended under the name of the river St. Croix mentioned in the Treaty and forming a part of the western boundary of the province of Nova-Scotia; and this question was referred under the fifth article ofthe Treaty of Amity, Commerce and Navigation, between His Majesty and the United States, to the final decision of Commissioners, who were by a declaration under their hands and seals, to decide what River was the river St. Croix, intended by the Treaty of Peace, and in their declara¬ Appendix, No. 2.
tion to give a description of the River, and particularize the latitude and longitude of its mouth and of its source, and both Parties to the Treaty agreed to consider such decision as final and conclusive, so as that the same should never thereafter be called into question, or made the subject of dispute or difference between them.
To determine then what Islands at the time of the Treaty were or theretofore had been within the Province of NovaScotia, we must in the first place refer to the original Grant of that Province to Sir WILLIAM ALEXANDER, in the year 1621. It is well known that the decision of the Commissioners under the 5th article of the Treaty of Amity, Commerce and Navigation above mentioned, with regard to the identity of the river St. pix, was dictated and governed by the boundaries of the Province of Nova-Scotia as originally described in Sir WILLIAM ALEXANDER's Patent, and that the river St. Croix, mentioned in that Grant as part of the Western boundaries of that Province, was the River decided to be the river St. Croix truly intended by the Treaty of Peace; by recurring to that Grant we find the Islands originally forming a part of the Province of Nova-Scotia, as far as respects the present question, to be thus described :"includens et comprehendens intra prædictas maris oras littorales ac earum circumferentias a mari ad mare omnes terras conti"nentes cum fluminibus torrentibus sinibus, littoribus, INSULIS aut "maribus jacentibus prope aut infra sex leucas ad aliquam ear"umdem partem ex occidentali, boreali aut orientali partibus ora"rum littoralium et præcinctuum earumdem." And in confor mity to this original Grant of the Province of Nova-Scotia, we find at the time of the Treaty of Peace, the same river St. Croix to be a part of its Western boundary, and the Islands forming a part of it at that time also (as described in the Commissions to the Governors of that Province) to be all Islands within six leagues of any part of the Coast.
It is well known that Moose-Island and Dudley- Island, the latter under the name of St. Croix Island, were granted to FRANCIS BERNARD, and others, by letters patent, under the Great Seal of the Province of Nova-Scotia, bearing date the 30th October, 1765-that they remained under the actual jurisdiction of the Province of Nova-Scotia, until the Treaty of Peace, and afterwards under the actual jurisdiction of this Province, for some time after its erection.
The State of Massachusetts has, from the time of the Treaty in 1783, been constantly endeavouring to encrsach
upon his Majesty's Territory in that quarter; in the year 1784 Governor HANCOCK, of that State, remonstrated to Governor PARR, of the Province of Nova-Scotia, against the settlements made at St. Andrews, claiming all the lands lying westward of the river Magaguadavic, as being a part of the State of Massachusett. This claim was referred to the then Secretary of State, Lord SYDNEY, who in his answer to Governor PARR, dated 8th March, 1785, among other things says"His Majesty feels himself called upon to refuse a compli"ance with the requisition which has been made for the re "moval of His Subjects now in possession of Lands on the "Western side of the river Magaguadavic, called the Little "St. Croix, and between that River and Great St. Croix or Scoodiac, which latter must be cdered as the line "of separation, and His Majesty is determined to protect "His faithful and loyal Subjects, in the peaceable possession "of those Lands."
This decision on the part of His Majesty's Government, and the consequent possession maintained by His Subjects, put a stop to all further complaint with regard to these settlements; and there can be no doubt, if the same conduct had been pursued with regard to the Islands, that Moose-Island, Dudley-Island, and Frederick-Island, would with the other Islands in Passamaquoddy-Bay, have at this day been in the quiet and peaceable possession of His Ma-" jesty's Subjects, and the present cause would never have had an existence.
In the month of November, 1784, New-Brunswick was erected into a separate Province.
In the year 1785, this Province was divided into Counties, and the County of Charlotte was bounded and described as follows, viz. "bounded on the South by the Bay "of Fundy; on the West by the river Scoodiac or Saint "Croix, and the Western shore of the Bay of Passamaquoddy,
including the Island of Grand Manan; on the East by a "due North line from Point Le Proe, in said Bay of "Fundy, running into the Country; and on the North by a due West line, commencing in the said North line thirty "miles distant from Point Le Proe aforesaid."
Courts of Sessions and Inferior Courts of Common Pleas were thereupon in the same year established in this County, and the Sheriff of the County regularly summoned the Inhabitants of Moose-Island, to serve as Jurymen in those Courts, who attended accordingly.
In this year 1785, Mr. BowpoIN was elected Governor of the State of Massachusetts-on the 9th of Sept. in that year, he wrote a letter to Governor CARLETON, in which he complained of the Government of New-Brunswick, for "as
serting a claim to Moose-Island, Dudley and Frederick"Islands, in advertising and directing the inhabitants of "Moose-Island to attend the Courts of St. Andrews, as Jurymen, which he considered as an encroachment upon "the territorial rights and sovereignty of the Commonwealth "of Massachusetts and of the United States."
To this letter Governor CARLETON returned an answer dated the 18th of October, 1785, in which he says,-" Al"though the Sheriff has acted without any special advice or "direction from either of the judicial officers of Govern-› "ment, yet I cannot but think that in considering Moose"Island, together with Dudley and Frederick-Islands, as "within the County of Charlotte, he is clearly warranted, "not only by the limits of his bailiwick, but by the express terms of the Treaty, which reserve to Great-Britain all "such Islands as now are or heretofore have been within "the limits of the Province of Nova-Scotia."
The Sheriff continued to summon Jurymen from these Islands, and no further public complaint was made.
In January 1786, the first General Assembly in the Province of New-Brunswick was called. At this Session an Act of Assembly was passed, dividing the several Counties into Towns or Parishes, and the Parish of West-Isles, in the County of Charlotte, is in that Act described as follows:--"The seventh Town or Parish to be called, known and "distinguished by the name of West-Isles, to contain Deer "Island, Campo-Bello Island, Grand Manan Island, Moose"Island, Frederick-Island, and Dudley-Island; with all the "lesser Islands contiguous to them, not included in the "Towns beforementioned."
After the passing of this Act, not only Jurymen continued to be summoned from Moose-Island, which was the only one of the three Islands in question which was inhabited, but Parish officers were several years appointed from this Island indiscriminately with the other Islands forming the Parish of West-Isles.
In the year 1791, Mr. Cooper, Sheriff of the County of Washington, the next adjoining County in the State of Massachusetts, came to Moose-Island armed, with two