IMAGE EVALUATION TEST TARGET (MT-3) <. i-^. s. 1.0 I.I 1^ 12.8 156 ||a2 M 2.2 1^ lllliio 1.8 1.25 1.4 116 == i== ^ 6" ► e. ^m m ^ >:> Photographic Sciences Corporation T3 V/EST MAIN STREET WEQSrER,N.Y. H&iO (716) 8, 503 m \ :\ ;V \ «^ 6^ .^ "W <^ >> i/.A CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques vV Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of film*ng, are checked below. n D n n D n Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagie Covers restored and/or laminated/ Couverture restaurie et/ou pelliculie I I Cover title missing/ Le titre de couverture manque □ Coloured maps/ Cartes giographiquea en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) r~~| Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relii avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ Lareliure serria peut causer de I'ombre ou do la distorsion le long de la marge intdrieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout^es lors d'une restauration apparaissent dans le texte, mais, lorsque cela dtait possible, ces pages n'ont pas 6t6 film6es. Additional comments:/ Commentaires supplimentaires; L'Institut a microfilm^ le meilleur ex:,mplaire qu'il lui a dt6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent axiger una modification dans la m^thode normale de fiimage sont indiquis ci-dessous. I 1 Coloured pages/ n Pages de couleur Pages damaged/ Pages endommagdes Pages restored and/oi Pages restaurdes et/ou pelliculdes I I Pages damaged/ r~~| Pages restored and/or laminated/ y\ Pages discoloured, stained or foxed/ ^ ' Pages dicolordes, tachetdes ou piqu^es I I Pages detached/ Pages ditach^es Showthrough/ Transparence Quality of prir Quality indgale de I'impression Includes supplementary materit Comprend du matdriel supplemontaire Only edition available/ Seule Edition o.sponible FT] Showthrough/ I I Quality of print varies/ I I Includes supplementary material/ |~n Only edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une peiure, etc.. ont 6x6 film^es it nouveau de faqon ii obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 26X 30X m^m^ ■^^■■H ^iHHM^ ^^^^ -H^i^H ^^^^m tm^^^ bbh^^ ^hi^b^ h^hi^ iHi^^Hi ^hh^ wmm 12X 16X 20X 24X 28X 32X The copy filmed here has been reproduced thanks to the generosity of: Library of the Public Archives of Canada L'exemplaire film6 fut reproduit grAce d la gAn6rosit6 de: La bibliothdque des Archives pubiiques du Canada The Images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images suivantes ont 6t6 reproduites avec le plus grtand soin, compte tenu de la condition et de la nettetd de rexemplaire filmd, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol — ^^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les exemplaires originaux dont la couverture en papier est imprimto sont film6s en commenpant par le premier plat et en terminant soit par la derniire page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont fiimds en commen9ant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la dernidre imago de cheque microfiche, selon le cas: le symbole — ► signifie "A SUIVRE ", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmis d des taux de r6ducticn diff6rents. Lorsque ie document est trop grand pour dtre reproduit en un seul clichd, il est film6 d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 n ^ ■k\\-. ■''"'■■■''■"^'^^^"'"PliBWI^PBWiPBiBl %• t-'t t SUBSTANCE •OP k JUDGMENT, DELIVERED IN THE €OURT OJF riCE.AJDMIRALTT, ■• ■ • ' i ■ 1- '-V i»*^' ::,^ .H: ■'•■£'/■ '^ KALlfAX IN NOVA SCOTIAf ' On the TWftNTY-FOUHTH DaY OF Au<»UST« 1818 1 In the Ca»e of the '"'.*'"!* -V :^''^' '"'■ ; SCHOONER NABBY, THOMAS STANDLEY MASTER i '^^^4^'^''-^^^ « Y » .," :'■ CROFTON UNIACK^,lSSQ. v^:.^-H'^>PqS^-^UDGE of that COURT. ■•-'> . ^- Jlt 1 j> ''^' *.* ■ ^Z ** Every deviation from this system, Whether voluntary or from iiTe- sistibie necessity, every licence to admit foreign vessels into British ports, is a naii driven into the cutfia of the British ein|>ire." Sia Alexander Crokg. r HALIFAX: printed by EDMUND WARD, at his Office, No. 41, comer of Up- j)€r Water aad J iigobs streets. f: ■■../: x:--!i: >kA' ♦ ■»*"' , ■ ; ^ ^fn^mmmmmm 'till'" ' ■! . / - ■«( i 'iif'i'. :.."^:j •if »■»* W' '> V 'fj' />!i^;u;?^M- THIS vessel t?as seized by His Majesty's sMp Safaccn) Jonn Gore, Eaa^. Commander, and has been brought into this Court for adjudication. An aIies:ation has been filed, on behali of His Majesty, containing several charges, and a claim has been made t>y Thomas Standley the master, a citizen of the United States of America, on behalf of himself, Joseph Standley, and Samuel Had« lock, also citizens of the United States, as the owners of this Yessel. In coAsid^ipg the c^se which is submitted to the Court in this allegation and claim, it will be fotind to rest upon two grounds^ ^hich have been brought forward and supported, with great leara- log and ability, on the part of the prosecution. First, — It is contended, that this vessel, having been ta- fceii while engai^red in the fishery on the Coasts of Nova-Scotia, lias violated' the territorial rights of Great- Britain, and should|» therefore, be condemned : and secondly, — that having entered •neofthe haf hours of this Province without any justifiable cause^ •he has infrintfed the laws of trade and Havigatiou, which prohibit foreigners from trading with the Cqloaies, and has^ therefore, ia^ furred the peualtieii of those laws. -% 14 1 The CoHtl IS called upon in this case, during a petio^ of l^rofounil peace, to enter into the consideration of a subject whicK Involves the interests of a foreign nation, and to apply, in their iifra«Kst strirtuess, those fi^eneral principles of abstract and univer* sal law, which are appealed lo in questions between contending^ nations, it is presented to the Court in its most grand and im- posing aspect, not as a collateral point growing out of private mt' rests, and ariNini; out of considerations of municipal law, but as a direct and s'.demn question, in which the high and important riuhtsofone nation are to be defined and suppofted> and the claims 9iud privileges of another to be Confirmed or annihilated. The violated rights of Great- Britain are represented as seeking, in the dignity of insulted (greatness, the protection of its sacred tribunals, fkiid as claiming, in the time of peace, from public justice, that de- ffe7ic« which Ihfy have eve' ^ound in war beneath the arms of their brave 'defenders. Certain acts of the citizens of the United States are held up to the Court as the infringement of territorial rights, made under the pretext of privileges become obsolete and now unacknowledged ; aiid the confiscation of property is demand* ed as the just and unavoidable penalty of the offence. In this view of the subject it becomes one of the highest im'» pcrtance, and it will require the most serious attention on the part of the Court, neither to shrink from its duties from an apprehen* sinn of consequences, nor to exert its authority beyond its proper limits, from the influence of feelings which the subje'^t mav be sup- posed to excite. As it is the clear duty of the Court to take cog<- iiizance of all questions legally within its jurisdiction, and to ad- minister the law ^o contending parties, so it is highly improper in it to entertain and determine those which belong to other tribu- nals, or which are not within f,he settled limits of its own au« thority. The jurisdiction of the Court o^ Admiralty in former timea ■was a subject of much controversy* and many very violent and tinbecoiniiig contentions have at different periods existed, as totha nature of the subjects to which its authority extended. Those discussions, which have so repeatedly laid open the subject to the investigation of the most able lawyers, have removed many of the errors which once prevailed, and little doubt can now be enter- tained as to the subjects of its ordinary jurisdiction. It will be necessary, however, for the satisfaction of those who have urged the Court to take cognizance of this subject, and to proceed to adjudicatioa oa the merits of this cstfC; to consider; ia the fullest [ 5 1 manner, whether the Court of Vice Admiratty has, vithtn its orcR^ nary jurisdiction, any power to proceed tu ihti adjudication oT foreign vessels, char^^cd w>lh lUe violation of territorial rights^ The Court of Admiralty takes co^;nizance of inatttTH arts* iug either witUin un civil or its prize-jurisdiction^ The !i(st»nce Court embraces all matters of a private nature, arising out of mar>* time affairs, but does not extend to subjects which grow out of \ state of war, nor can it sustain questions in which the politicid. interests of nations are involved. Without determining the pre« cise boundaries of the instance Court, which iu many cusea may, even at this day, be difhcult to ascertain, as respects sub- jects of a private nature, it is sufficient in this case to sheWj, that the subject now submitted to it does not come within its juris- diction. By the special provisiovis of an Act of Parliament the in>- portant interests of trade and navigation, are placed within itsjuris- diction, and full power is given to confiscate the property of indi« Tiduals found violatinir any of the positive rrgulations of British trade. Under those laws the interests of foreiirners may be invol- ved, and their properly condemned, but all such cases are confined to private interests, and the offences, as well as the , > viiralty of England, and also the sevtriJ Courts of Admiralljr • ivithin the dominions, which shall be duly comihisHioned, to takb- • • cognizance of, and judicially proceed npon, all ships, vessels, and' goods as shall be seized and detained, and to adjudge and condemfi.' the same, saving stich exceptions as tfiay be, at any time, after- declared, in consequence of this commission a warrant iscrues^ r; tinder the seal of the ofBce o€ Admiralty, with a copy, of soch , -^ commission usually annexed,^ requiring His Majesty's Vice Ad- ' ^: niralty Court at Halifax, (ur whatever place it may be) to take- cognizance of dnd judicially to proceed upon all ships and goodi»^, ^ that are or shall be taken within the limits of said Court, and ta v ,^ hear and determine the saAie, a«id according to the course of Ad- .■^ Iniralty and law of nations to adjudge and condemn the same, sav*- : ing always, such exceptions asHis Majesty may^attiDy tiiiie>/ (TOb- |>leased to declare^ ■» -^ ,^ Thus the Court of Admiralty becoiices fully aathorised to. ]take cognizance of, and to proceed judicially upon, all Vessels seU v :f«ed jure belli, or under any orders His, Majesty's gorern merit.:,-. ,^ may have deemed it expedient to issue> But, until the Court re-^ yr Mceives authority to act througb the regular and legal channel, itkv' Cannot undertake to administer the law as applicabk to prize, arid, .to settle the conflicting interests of nations. This Court cannci ^^)enetrato into the secrets of the British cabin&l to ascertain wh^tv - the political views of His Majesty's governnient may be on thick ^^ {Subject, but as no r^gnlair steps have bel'n aidopted, to give the ^''v /:Court a power to proceed to adjudiciatloti ai^l to condemn thei^O;, <' V, vessels, it might be inferred, that it was not the intention to cort-i- fiscate them at present, but ii>crely to detain them u li til further i^ , instl-uctions should be given. It must be well known to those whoK^i^^' ^dininister the British government, advised ad they are by thOi- y v ' most learned civilians of the age, that the Court of ViciB Admiral- ^V V ty has not power, in the exercise of its ordiiiftry jurisdiction, to^-^' ^ take cognizance of subjects of such a nature.— Unitifldencedi there*. >/ ■ *.fore, by ahy considerations, arising fi-otri the tiecessity orekpedi- '* • .- cucy of what has been jfiroposed, arid paying every respect to tli«-s - ,^;t.order which has been produced, this Court will endeavour to pet- '■''■'[ form its duty with iirmness, wi^in ttie pronet UHfltn predcribed tot ^ ■ \ ,/f', t>-;{-" ^* t* *, y^ ■t* i" ■4 t ^ \ -r ■'. its jurisdiction, but ivil) Bot aUaw itMHf to be led, by ftny ptansibtii- tiew of the subject, into a \ag.aex icregular, aud oujutdififtbliB exW ercise of lift power, hi ,<.< That these opinions are not merety the result of nfiy ovik unassisted deliberatious, bat that they ar^ mipported by the dect^ -fiions of the most learned and able judges, both of the civil an4f vofoinon law Courts, I ahall proceed, in the next place, to shew. Thk first case I shall notice on this subject is the Curiei«v ( Stewarts Report 312) in which Sir Alexr. Croke, in speaking o€ Vessels detained in consequence of a declaration of war, but befor^ any commission to condemn, uses these words " This then is pro^ petty which has been seized and detained, in consequence of a de* deration ofwar made by the United States against Gieat Britain^ but before any orders have been given by His Majesty in Council, for general reprisals, and before any commission had been issue \ to require this Court to adjudge and condemh such ships, vesiE^eb and goods as shall belong: to the United States. Again ** Till th^ British govemmerit ha&declared the subjects of the United States to b^enerates, by its order for general reprisals, and by a tearrant 19 eondemn their goods, this Conrt cxnhot consider them as enemies^ Jroperty. flTen an order from the British Government to stixi nd detain vessels wonld not have that effect. That might be on^ ]y provisional and must depend upon subsequent explanation, ha^ Ting a retroactive power. Seizures made ihay be detlared> to bave been only on the footing of a temporary sequestration." How much stronger was that case than the one before thf^ Court. The actual declaration of war, by the government mtha United States, wais followed immedjiateiy, by all the violence of trar ; the treaty of pence between the two countries was violatect and broken ; the commerce of Great Britain was assailed and in^ terrupted ; ami all tbeise rights which are most valuable to a natio(| vere infringed, in the true spirit of national hostility : yet, in that «a#e, the Court could not condemn the property trhich was very |lrcperly seized by His Majesty's ships. In this case it is alledi fed that the citizens of the United States have violated the righti f Great Britain, by entering its territory and fishing therein, and that, therefore, the vessels so found should he condemned. But if ^ey had made an actual attack upon our shores, if they had captu* red and destroyed the property of British subjects both by sea and land, this Conrt would not be authorized to condemn, until it should be commanded so to do by the Sovereign> in whom ^oni such power iw reposed by the constitutioa of our country. \'H: V V -^Hi. ',; ^ -S'-i' :-if,^^'r^i^^;:r'-rr'r' ■^^rfw-s^jy--^ .--*v .■ -<^^.^.. ■■■—»■ -r ■iJ.: i t « 1 The next case T slialt pro(taee m support of my opinion, Tt tliRtof the HuWah (3d Rob. Rtp. p. 235;. 'J hut blnp was carritd intoHt Domingo aud proceeded aguiiist in the Court of A(Iinirulty« The Court there was properly constitutt-d as a civil CuwrX of Ad* wiralty, and His Majesly^s in:4ructioii8 wtrt- addressed to it as a Priz*' Court, bat hy a tnistake no warrant had bien issued to nive it a prize jurisdiction against FrUnce and Holland, although there h'ldheenapnz'' warrant against Spaiiih Sir W. Scott. — " In this case there i» no imputation of misconduct ;- the captorH went to \ Court whirh was silting at 8t. Dumuigo, a|ipareiUly with competent aulhnritv > in that Court he obtained a Hent«nce of condemnation^ and dititriitulion has taken place in consequence of it : But thai Court having no authority, those proceedings are null and ot no le* gal tfT ct whatsoever/" Now at the time the Court of Admiralty st St. Domingo was exercising a prize jurisdietion ovec the ships aud goods of two Nations, it could not extend that power to pro- perty bt longing to another nation, although actual hostilities ex« isted, and the vessels and goods of that nation were confiscated in other Couit»duly authorised-. The Court of Admiralty is not to look at the state of things between Great Britain and auotiier na<^ tion, and to infer fvoin the existence of hostilities,, or from the or« ders issued to the Naval Comuiauders, that its po'vers. are called forth, and are to be exercised to their utmost extent, it does noi sit to deliberate on the political relati 3ns. of states, but to-adminis* ter the law whenever it shall be so recpiifed. That the persona who have presided in the Courts of Vice Admiralty have often ven* tured beyond the limits of their jurisdiction, aud assumed the ex- ercise of powers with which they were not invested it is well known; but this Court will select higher examples for its imitation, and will not easily be led into those gross errors, which often prove injurious to the interests of individuals, and always lessen the respect due to the tribunals of justice.. 1 SHALL Hientioii one more ca4>^, on this point, which vr^% detrrniined by that eminent judge Lord Mansfield, a case in which the jurisdiction of the Court of Admiralty was very fully consider- ed. In the case of Lindo vs. Rodney, Lord Mansfield, speaking oi thi distinrtiun of the civil and prize jurisdiction of the Admiralty says: — *' The Court of Admiralty is called the Instance Court, the other the Prize Court. The manner of proceeding is totally difFer* cut. The whole system of litigation and jurisprudence in the Prize Court is peculiar to itseli it is no more like the Court of AdinirsiU ty tbau it is to »ny Court ia Westminster Uall.'^^ ^ , .. J- 'W 'v. r 9 ) It is qnite unnecessary to go farther into tTiis subjrcf. tlerearetiie decisions of the most learned and eminent jlld^:es. and Ihty fully su|)iiort the «>;enerul position which 1 mnst aHitume, that the CtMirt of Admiralty cannot, in the exercise of its ordinary ju-^ risdiction, entertain any question which bears the character o? nrize. The (irat ground in this case is clearly of that nxture. It IS that this vessel has. heen cnptured by one of His IMujesty's ships of war> for the violation of the rights of Great Britain, and that such seizure was made under orders from the Admiralty. Tha "Wh'tlfi qu( stion arises out of a proceeding of a military and not of ai mo^l nature. And this itis that makes the dislincticn. But it may be asked, whether the orders thus issaed to the Naval ComioaiMler in Chief are to be rendered nugatory, and "Whether thia delcvrmination i» to operate to counteract the evident -wishes and iuteationsof His Majesty^s Government. To this tha- answer is pkin. The Court has tlie power to ^ake the custody of the vessel, and to preserve it in the usual manner, until the finalt determination of governmeni: shall be made known, althoui>h it can-> not proceed to adjudication upon this, question. H can neither condemn nor restore. It is true no positive inetructimis have- been sent to tliis Court to detain vessels of this description, but. sufficient ha» appeared to it, to authorize the regular extrcise of its ordinary cute ia the preservation of the property. Tliat I ank correct in this opinion L shall shew by an authority directly to the point. Upon the declaration of war by the Uniied States of Anie-^ ca, His IMajesty's ships captured American vtysels and brought them into the custody of this Court. At that time no order had been made to snize American pro^ierty,. nor had an,y iiistructiona ivhatever been sent to the Court of Admiralty in this Province. Sir Alexr. Croke (Case of the Dart, Stnvart's Report 301 >„ under such circumstances, said " They may possibly he declared *' to be enemies in luiure, but their present situation is ambit^uous* '* Whilst this uncertainty continues the Court cannot reject the " claim of tlie parties or condemn tiieir property. 1^» itlier in thia *' state of semi-hostilities with the United States would it think. '^ itself justified in restoring goods/' In the present case the Court IB bound to. take notice of the orders wluch have been issued to the Commander in Chief, and to give them an operation to a. certain extent. Tliey have been communicated to the Court, and fi^eling itself influenced by the high respect it will ever have for tfee distinguished oflicers, to whom His Majesty may confide the CQjniaaud of his fleets^ it cannot kcsitate to hold th& cu»dody o£ m C 10 ] fttc^ YesselK as may be brought within its eftre. Tr shotfier Cfli# Sir Aiexr. Croke recognized t' e orders which had been issued t<> detain vessels^ and gave them the effect tiiat I am wiHing to ailu^ Ihose to have which have been comnatinicated to me. in the cas<9 ef the Zodiac ( Stewart* s Report, 333)» he said " If this was mere* }y a claim as for American property, this Court would certainlyr not proceed to adjudicate upon it, because in the hostile or at least ambiguous ctate of the two countries, under His Royal Hisfhness the Prince Regent's order in Council to detain, and bring into port all vessels belonging tu the citizen^ of the United States, witiiout giving any authority to condemn th^m, no prop^rl]^ ©f that description could either bo condemned or restored." I HAVH given to this stibjetcthe most serious attention^ and liave considered fully the ingenious arguments which have beeo pressed upon tlie Court by His Majesty's Advocate General ; and 1 am perfectly satisfied, that I should not be justified in exercis- ing the powers which it has been contended tliis Court possesses* Pid the cause rest, therefore, entirely upon thrs ground^ it would he my duty to direct it to stand over until farther instructions should be given by His Majesty*s Government; but another point has been submitted to. my consideration which may render such; delay unnecessary, afid 1 sliall proceed to state the reasons whick 1 deem sufficient to support the judgment about to be pronounced* The point now presented to the Court arises under the iawa of trade and navigation, and it is contended, that this vessel, h«r appurtenances, and every thing laden on board of her are liable ta confiscation, for having illegally imported goods, wares, and mer« d>andize into a port of this Province, she being a vessel not owned and na/igated as vessels are reqoircd to be, to entitle them to the privilege of trading with the Colonies. Questions arising under the laws made for the regulation of trade and navigation are not only clearly within the jurisdiction of this Court, but require its utmost attention and care, lest tho ignorance or the arts of commercial ^peculators should interrupt the operation of a system framed for the greatest national pur- poses ; and which has been found to realize the best hopes of those elFrlightened minds by which it was conceived and matured. It "Would seem unnecessary for me in considering a question, coo- fined within the nairow bounds of a few clauses of an act of par- liament, to take an extensive view of the whole system : but a* the CoMrl is under the necessity ^f seeking the rules which are to guvera rt,^ in the eoastructioo of this particular acv^ h^sb an e&- t li ] Ikt^w ioriiej>\i6r\ of the general spirit of llie whole system, it must take a comprehensive view of the {freat designs for which it was ivisely toni rived. Those laws took their rise in the profound and ehlighleneA Iriews, which eiperiehce had offered to the acute and reflecting mind, of the true basis on which might be erected the fahric uf a, great nation. And however that system may have oeen extended, and improved, by the various alterations and additions, whicU grew oat of new relations and more complicated public interests^, the same spirit which is manifest in thf provisions of the earliest laws may be traced through every succeeding regulntiou. They iise to the contemplation of the human mind with a regularity at onre clear and complicated ; and may be considered as a beautiful apecimen of positive law. in which the profound, and comprehen- sive speculations of political economy, are admirably blended lirith the useful and practical regulations of mercantile experience, ^he wisdom of the policy which projected, and of the care whicb It^as constantly taken to render this system more perfect, was very soon discovered in the beneficial consecjnences which resulted ta the nation. It was soon found that those admirable reguiationa 'ifrere adapted,, to strengthen and enrich the mother country, while they gave a permanehcy of character to her distant possessions^ "which must have been entirely lost in the confusion of a loose and unrestrained commerce. As this system advanced to that jperfection in which we now find it, those nations whose interests seem to have been neglected in the promotion of our own. did not fail to discover, What they aifected to cons^ider a narrow and illibe- ral feeling, Lncoiisistent with those dignified and generous senti- ments Which should always govern the policy of nations. But ^hile Great- Britain increased in national greatness, and commer- cial prosperity, she viewed the envy and jealousy of other nations m^brely as a powerful confirmation of the wisdom of her plans. Those laws form a code which it is the duty of this Court td guard from the slightest violation ; their importance cannot be luily estimated, and they, whose minds are tool -nited to trace the progress of our national prosperity in the rigid execution of them, might be awakened to a sense of their value by the rapid decline of onr gr^tness, which would be the consequence of their relaxa- tion. In vie>*jng the subject In this light the first ol.jert that strikes the mhid, is the great design of confiuiiig to British snb- iects, as far as it could possiblv be effected, the commi-rfe of the AiltisU cotoui&H. For this purpoi^e no goods^ wares or mfeichaa*; [T ! .[ 12 I dise can be imported into, or exported from the colonies^ unlcM ii Britisli built vessels owned by British subjects, and navigated by the master and three-foui tlis of the crew suujttcts uf Great BrL* tain, under pain ol torfeiture of ship and goods. This part of th« law is as clear as the plainest tt;ruis can make it, ijut were th» Conrt to adopt a construction, which should be restruined to the very precise meaning of the words, the spirit of this law as ^ell uii of the whoh? system would be vi(>l-Ued. If it should be said that the word impnj fed invAnH the actual Inndinu: uf^'onds, wares or merchandise, and that no puualty could be intiicted except in a case where that fe.^1 was positively pr.ived 'y or, that if the owner could make out by the evidence of himself uiid crew, that no arti- cles were landed from the vessel, she ouyht necessaiily ta be re- stored ; it would follow, that a foreign vessel might enter the har- loursofa colony or pKuitation without permission, and remiiia there until a suii.ible ocoiision should udi r to liii»d her cargo. But this CO struclion would Un evidently in opposition to the true spi- rit and meaning of this clause, and would render useless and una- \ailiu«j every provision of the laws of trade aiid navigation, which are clearlj founded in the design, to reserfse the privileg,i^s ol trad* to British subjects, and to exclude foreigners from participating therein. 1 cannot conceiv)^ two ideas more incoitsisl^nt with each other, than a law positively declaring that foreigners shall nai trade with the colonies, and at the same time a luose permission to enter the hariipurs of those colonies, and to continue there while it may suit their own convenience or favoui their own views It has been contended lh:«t the presumption, which arises from a vessel's entering an interdicted harbour, namelVi that she came there with an intention to trade, may be overcome by shew« ing circumstances which prove that no such intention existed; and that if, for instance, it were made out to the satisfaction of the Court, that the vessel was merely in ballast^ the presumptmn of her importing goods, wares and mi rchandise would be completely destroyed, and she ought to be actpiitted. But it should be re- membered that the laws which prohibit the importation of goods makethe exportation equally penal; and if vessels were allowed to enter the harbours of a colony inh^Uastf what protection could be given to the lawful trade of British subjects ? Would not such permission throw open the ports and harbours of this country to the free trade of every American vessel ? Under such a vag.ue aitd preposterous construction of this wholesome and rigid system of laws, it would only be necess;iry for a foreign vessel 1o lie at an**. t 13 3 tJJinMfi Anf tjir^iifs, until an opportunity offered to sliip grootls tot exportation, which niitrhi be done without fear of iulerniptioJi, in mlinost every har{i«»nrof this Provijioe. To prevent the certuin cou- •ftquenccs of such a constructiu»i,il would require every inhabitant of this Prdviuce to be a custoin-housi^ offictr. and to be employed day and ni^ihi, in presi^rving tlie trade t»l the country from the monopoly of the entcrprisii):; advciturefs of the neighbouring connlryi. It is well known, 'that even the most rig:id execution of tlie laws of trade is not sicfticitnt to deter the eager speculator from enicafiing in the commerce of these colonies. The contigui- ty of the harbours of the two countries makes it almost impossible, under every restraint that humnn laws can impose, to prevent a system of smu^ulmar, destructive of the interests of the honest British merciian), and productive of the most pernicious conse- quences; — in weakening t^ie sense of the moral obligation of the laws, and in tempting the nihabitants of this colony, to blend their interests with those of tiie depraved and lawless adventurer, rather than to strive by an honest and urateful allegiance to uphold the nation which protects them. Shall this Court then declare, by its s^demn decisions, that the taws allow such an entry into the harbor» of this Province? Shall it say it is prohibited that you should import aiidbxport goods, but you may come as harmless and quiet people, to view the beauties of the surrounding scenery, and to pass your time in inotfeiisive indolence. It has also been advanced, as a doctrine, to this Court, tliataIthonf]^h these principles may be applicable to vessels, osten- •ibly equipped for trade, and which are constantly engaged in commerce ; yet they ought not to be carried into rigid effect against vessels of a distinct character And an exception has been made in favor of vessels, manifestly fitted out for the fishery t4id which could not be supposed to have commercial objects in content pl.ition. But so far from considerfng vessels of this des- cription as entitled to any particular favor, or to which a relaxation of thf laws might be ma Sir AlexanJ^r Crolb:e thus expresses himself-^ '*' A necessity to justify the breach of a law roui^ be an immediate natural nvct^isity, not a mere remote moral necessity. It must be an imminent duiii^er of peri'-hin^.'^ Besides these cases which ttl*^ af^ cjf ar and as much tot the point as it is possible, it is well Icnown, thiit by the statute law of Great Britain foreign vessels erts not allowed even to hover about the shores of these colonies ; arid that if found >\-ilhin a specified distance after a warning to de- I ►art thoy are liable to confiscation. So far, therefore, from any pose permission tq enter the harbors of this Province, uith or toithout a cnrgOf being consistent with the words or spirit of thi»- C^^nerul system of laws, foreign vessels are not allowed to approach- "within two leagues of the shores. The hovering act, as it is calU «d, was made to establish a greater degree of strictness in the ex- efutiou of the laws regulating the plantation trade thon had been ■observed, and strengthens the position which I think it necessary to lajfe in this case. If we look to the decisions, which have been made in cases t>f blockade, we shall find the principles which are applicable to Vessels entering an interdicted port, much more rigid than any this; Court has yet advanced for the protection of the colonial trade, T^h^ mere circumstance of the vessel's sailing towards the block- aded port with an intention to enter it wili work the forfeiture: neither is she permitted to enter such port in ballast or for the sup- p^ly of water. In the case of the exchange (\ vol- of Eduu Re- pfirtSt page 4^), f^ir William Scott says, ♦* If it were once admit* t^d, that a siiip may enter an interdicted port to supply herself with water, or on any other pretence, a door would be open to all. sorts of frauds, without the possibility of preventing them." In the case of the Comtt (\ Edward* s Reports, 32), the same great man observes "It has not been contended that a ship may enter a blockaded port even in ballast; that is a point upon which thiat- Court bus already decided, if wrongly the decision must be cor- rected elsewhert-.'*' Now I consider the ports of this Colony as^ interdicted, and that according to the true spirit an^ tiieaning of the wliole system of laws foreigners cannot enfer the same withoat. sproe reason that may be hsld sufiicieot to relax their strictness. It is notorious that the hgibours and ports of thi^ Proviuce afford » •'. 1 the greatest facility to smugglers ; the small number of theii' \n^ habitants, and the want of officers of the customs are circumstauw ces, which render more taiition necessary in this eountry thait might be foond requisite in Great- Britain. I shall therefore con- sider raysetf botind lo adopt those principles which are applied td cases of this nature, in their utmost tiijfour, and shall now proceed to consider the facts oi this particular case, and to examine whe- ther the causes assigned for entering a harbor in this Pi-ovince are sufficient for her justification. It is admitted by the claimaint that this vessel entered pope's Harbour in the Province of Nova-Scotia, aiid it will be ne- cessary to t;ensider the facts of the case iinder two heads; first* as to the cause of her entering that port« and secondly, whethei^ any thin^ was landed or taken on board While she remained there. The master of this vessel has &:iven his testimony to both points, to the first he says, " They went into Pope^s Harbour, the vreather was thick, and when they made the land they found^ themselves nearer than they e'xpected ; and being scant of water* ihey went into that port for the purpose of getting some, and with DO other intention whatever." and yet to the Very next question almost he answers, " They had abundance of provisions, stores, bait, wood, and water for the voyage^, at the time they left Iheit cwn port, and ^ere not apprehensive of any deficiency what* ever of any of those artick's," This account, as respects lh« causeofht^ entering the haYbotir, is confirmed by another wit* ness with the addition that there was a deficiency of wood. To the next point as to what was landed or taken on board %he Ma^er declares — *' They did not land or put on shore a sin* §Ie article of any kind except the water ca^s which they filled.- 'hey did not retjeive on board any articles Whatever except twd dollars' worth of bread, which he bought of one of the inhabitants of ^ l*opti'8 Harbor :" again, neither himself or any person on board either bought or sold, battered or exchanged, any article or arti- cles of any kinder description whatever, except the two dollars* KPorlh of bread he has already Spoken of.'* Another person be- / longing td*the vessel iFa^s to this point. That a quantity of wood iiras taken on board in their own boat. James Whidden^ a mid* vhipman of His Majesty's ship Saracen, who has released all hie interest in the eventof this cause, and comes before the Court both as a competent witness^ and as one to whom the highest credit \% due, has given his testimony in these words, " That he understood from the cre^s? that they had procured some vood, aad tiiat if tUejr \ I ;. , ... y •^' i i» i •-VK f,A> 4..-.. IlKenT^ sUftd in nled of it ttiey enpectei to rabpty tlbemiNstveft iritfi wood and water froni this eoikX, " They informed him they ha4 iieeni^ at Pope's harbour and aold some boot^^ for which they hadi r>t got payment/* How such contradictions are to be reconciled 8hatl not stoD to iD<|«kre i sufficient appears to the Court to shew* tdhat this vessel enletred ik harbour of tiiis Province, and touk certaiil articles on boahiy and that if it were essential to the prosecution ia Ais caase, a traffic, to a certain degree, was actually carried on. It remains to consider thedtfeucs which the claimaDt has thoaghi l^o^er to set up to justify such proceedings. A CLAIM has been filed, to which is annexed an answer td 1lhea11ej>:ationttnder the oath of the master. In this answer tw4 grounds of defence are taken quite inconsistent with each oth^iv In the first place it is said, that actual distress, arising from th# waui of Water obliged them to enter the harbour ; and that thef 6id not claim a right to approach the coast, or to enter the har<^ bours, bays, rivers, or creeks of this Province, under pretence of Dshingf, or for any purpose connected with the fishery. In thft •ecoud place it is boldly asnerted^ that, as citizens of the United States, they have a right to engage iu the fisheries on the ooasti and io the harbours of this Province. / Thb hberality which was always extended^ by the emi* laent lodge who so long presided in this Court, to parties whosA interests were committed to its care ; and the indulgimciet which fte granted to practitioners as to the forms of legal proceeding, will Sot allow me on this occasion to restrict the clahnant in making is defencie as he may be advised. But I wish it to be understood Ihat the proceedings must not assume a character, whith can otity lend to perplex the Court, and to prevent the only object which parties can be permitted to seek in Courts of liaw, the administra« iion of justice through the medium of unperverted truth. Aad I must coufiess, that this defence presents to the Court a confusecl IHcture, in which the interesting oolonrs of distress aro awkward* [y thrown over the obscure and almost faded outline of rights, ono9 clear and acknowledged. Such as it is, however, 1 shall cohiiderit^ ftnd this foreigner shall not be permitted to say that he Was refused to be heard by a British Court on every point he pleased to ttsBamct, •ndio ev^ry way in which he thought justice might be attained* .It BE lirst ground then is, that, this vessel came into a hapi poof of this Province in distress, and, without any pretence ti fight, sought that relief from the inhabitants of this Proviii1y e:itended to the inhabitants of a Brltlih C(w tony. And most assuredly if a case ot real distress is made out there is an end foreVer oftnis question. It nllist b^ bttried in^ thoM leelings whieh, I trust, will eVer be dear to this Court, and in the exercise of which it #ould hope to derive more s&tisfaction, thieili can ever arise from the rijj^id execution of the laws. Re^l distreiii is a passport even through the savage land ; it appeals at on therefore, I receive with every dii^pOsitioD of kindness, this ground of defence ; but let it not be iat garb assn** med by artifice to deceive and mislead. While I am ready to a6» knowledge the interesting features of distress, 1 am vigilant to de« tectthe subtle contrivances of art. Now what is the truth of thii case. That this vessel Was in any Serious distress can not-be p^ce* tended. That she might have Wanted a liitle water is very possi« ble, but it must be made out to this Court that the deficiency did not arisC) either from design, or from an unjdstifiable neglect ; -and, let it have arisen from whatever cadSe it tnight, that it wai such as to place the crew in imminent danger of perishing. ThA master says that they found themselves neare^ to the land than they expected, which snews that his distress was not such as to bave forced him to seek a harbour. He expresses his distress td furise from his water being scant, but he does not say that any in« convenience had been experienced, or that he could not have pro« •ecuted bis voya^e^ Besides vessels are botind to have a sumci« ent quantity of water and provisions on board for the voyage III ./ybich they are engaged, and it would be absurd to suppose, that ^* a scarcity of water, arising out of neglect, or, what is more prow "'bable, design, can operate to supersede the laws, and throw open British ports to any adventurer who may ifisbto €Yad6 tbt regiXj . latious of Bhtisb trade a&d navigfttwn. , ~ ' . - " .; r J9 i ,,. /.^ The evt jence on tliis aivd other points is dxtremeTy cotk^ 'tradictory. One says that vessels could carry on a fishi;i^ voy« age without going into any harbour, and another says it would lie impossible without the privilege of putting into some of the Bri« tish ports for wood and water ; and it is in evidence that they in-* formed the Midahipman that they expected to supply themselves with wood and water from the British coasts^ One of the witnesses expressly swears that they had a full sup|>Jv for their voyage, but that one of the barrels of water proving bad they put into Pope'si Harbour to get a fresh supply ; also, that a ten gallon cask of trater was spoiled by being put into an old gjin cask. Now it vould be beneath the dignity of a Court to spend time in oomment<« jng on such evidence as this, hrought forward to support a point,' irhicb always requires to be made out in the most satisfactory man-* Her, and in the proof of which such strictness has always been ob<« served. Nothing could have induced me to give the attention i hav« done to it, but a great an?^ety» that this subject, which has aU ready excited much public interest, should be thoroughly inves* tigated ; and that not only the principles of law, but the facts of the cas§ should[ he presented to tt^e. iRorld ii\ th.^ devest puint of t SHALL eoncTude my observations, on this point of thd case, with the ^nrds of a Judge, (Hir W. Scott) whose decisions lire not only studied by the lawyer as the sourctrs of profound in« fitruction, but are read, with interest,, by the enlightened and ac-« complistied scholar as the finest exeroisea of the human intellect, ** Where the party justifies the aet upon the plea of distress, it must not he a distress which he has created himself bv putting oi| board an insufficient (quantity of water or of provisions for such a Toy age; for there the distress is only a part of the mechanisni of the fraud, and cannot be set in excuse lorit ; and in the next place, the distress must be proved by the claimant in a clear and ■atisfactory manner, it is evidence which comes from himselfj, and from persons subject to his power, and probably involved in the fraud, if any fraud there bej^ and therefore it is liable to he ri* gidly examined.'* ^ ^ '^'^■ The last point which ia to be considered by the Court, is a right which has been set up by the claimant to enter tl>» por«» an 1^ and the government of that country, in the year 1783 ; and it 18 contended in the first place* that a right to take fish on ouf <{oasts, and in our harbours and bays* and to cure the same on thf «hore8 of this Province* was absolutely ackrum'^dged and givef by the third article of that treaty : and in the second, that adroit** ting the treaty granted only a privilege to do so, that such privi* ijege still exists because the treaty itself has not been annulled This question now presents itself in a way which obliges the Court to enter into the full consideration of the right here asserted. Fof ^Uhough it has already determined that it cannot tali;e eognfzanc^ of it as a direct charge against this vessel* having no authority ■0 to do ; yet as it becomes essential to the dettrrminatiuu of tbf feoond point in this causfe* as it arises incidentally out of the con8i<* ^oration of the municipal laws of the country, and as it oaust hf entertained in order to do justice to the parties whose private in« terests are inyolvi;d* it is its duty to i^ustain it, and to place it in ^uch a point of view, as may put an end to thos« doubta whici) SQme have afiected to indulge on this subject. It might be suffix cient for me to say* on this point* that His Majesty's Government having determined, that the privileges granted to the citizens of the United States by the treaty of 1783* to carry on the fishery vponthe coasts of this Province, and to cure fish \n the harbours thereof had ceased ; and that determination having been mad^ l^nown, it would not be necessary to consider this right aaentitle4 to any attention. But as it will require but little reasoning to ■hew the weakness of such pretensions* I shall take a cursory view of the gronnd3 u|on ^jhii^l) this extraordinary right aeems tb luive been placed, -Vv v It vrili not be requisite for me, in this case, to enter int^ those general considerations of the rights of nations to a dominion «»f the sea, which have occupied the attention of the gentlemen of .^9 bar. Very able writers on abstract law have difiered, bot^ ms respects the right of dominion over particular part^ of the sea^ t^nd al^o as to the distance from the shore over which a nation hoi* ding the land might exercise the rights of sovereignty. Whei| these inportftQt poio^ shall b« aubjuitted iii th^ Court^ iu i^ v«j <• ■ ''^. :f ) ■Jn ^ 21 1 -^-^^ ^Vich will ren^f r It incumbent on it to Hetcrmino tlif m, M wfft nQ% i^hrink from so ardyoua a tattle, neither will il despair of placinr fhem on grounds wliich ma,) find their support in tiie sound prin« ciples of general and universal \jaw ; principles which flow froni ||ie reflections of enliuhttnttd reason, corrected and confirmed bw the usageN and austoms of the civili:(ed world. It will hope, thai Ihose contradictioiiM, wl^ich may have been observed in the bes| writers are to be reconciled.by au attention to the rharacteristia circumstances of the different ages in which they thought an^ wrote ; and by an alloWance for the influence, which the fluctua^ ling relations, the jarring interests, afid tbev^riou^imtodificationf of the claims and pretensions of nations, cannot fail to produce even Vpon the moat reflecting mind. Much of that diflference fl^nnji amongst writers of tbif description, may be traced to the prevailinjf public sentiment, to national prejudices, and even to the eceentri* city of individual opinion. But whatever thedifficultief are whicb those great questions n^igHt present, they do not meet the Courl in this case. It is only necessary in order to see the simplicity o| this point, to read the article of the treaty on which th« claim it founded, and to determine whether that treaty existii at the pr%i •ent time. The words of the third article of the treaty are. : " It is agreed that the people of the Uuited States diatt (Dontinne to enjoy unmolested, tne right to take 0^h of every kio^ on the Grand Biink, and on all the other Banks of Newft»unolaod { lalso in the Qulf of St. Lawrence, and at all other places in the ses^ where the inhabitants of both countries used at any time hereto* fore to fish. And also that the inhabitants of the United Statef flhall have liherty to take fish, o( every kind, on such part of the coast of Nevfouudland, as British fishermen shall use (but not t^ dry or cure the same on that Island), and also on the coasts, baya^ and creeks of all other of Hif Britannic l^fajesty^s dominions in America ; and that the American fishernien sliall have liberty toi dry and cure fish in any of the unsettled hays, harbours, ana creeks of Nova-Scotia, Magdalen Islands, and Labrador, so. lon(|^ as the same shall remain unsettled, but so soon as the same or either of them shall be settled, it shall not be lawful for i\ip •aid fishermen to dry or cure fish at sych settlement wit)tout a previous agreement for that purpose, with the inhabitants, proprtf» etorsj or possessors of the ground." Now it is impossible to imagine words more clear thai| those. Two objects seem to have been in view, the first xif.as the ^■' ; ■: ^' i- ''-' , ■ ■■ ' '* <■:*■ ■ c i 22 ] i^: >\ ■i .« {>Ucef in the tea; and the aecond was ihtprimlegt which wai ntended to be granted to the people of the IJuited Slates, totak^ find cure f^sh on the coasts, apd iu the bays, creeks, and harbourii f>f the British dominions in North America. It would Heenf tha| the intention of the British Government at the time, was to ac« icnowled^e an absolute right in the people of America, to fiuh o^ the Grand Bank of Newfoundland, in the Gulf of St. Lawrence* pnd other places in the sea; but the Conrt is pot caHed u{)on, in this case, to determine that point. As respects the latter part of this article, it would be confounding allideus of common sense, and throwing obscurity over the ordinary perspicuity of language, td contpRd that the word liberty,, here used, can he copceived to con<< 'ivy an absolut^ unqualified right. That it was received as a pri-* Tiiege at the time, and has been exercised as such until the iat* iirar cannot, be doubted, By accepting such privilege thjat Go* Vernment acknowledged the right to e%iMt in Great-Britain, aodthf (Mily question left for the slightest cousideratioQ^ is^ wh^etb^f thai treaty is now in force ox not i* '*^^ i v • - - :' ^ ^ "' * - . It has been ingeniously argued on the part of the claim?* ftlii in this caune, that the treaty of 1 763 is now in force, because the late war being for a cause entirely new and distinct from the lauhjects of contention, which were terminated by that treaty, tho declaration of war by the United States was not a violation of any of its articles. And the words of some eminent writers would seeni to support such a doctrine : but a little attention to this sub** lect will explain the grounds, upon which the true and sound doctrine firmly rests. Grotius book 3, cap. 20, section 27, has these words, " It is also a daily dispute when a peace may be said to be broken, which the Greeks call Paraspondema : for rt is not directly the same thing to give a new occasion of war and to break a peace. But there is a great difference between them ah well in tegard to the penalty which the breaker incurs, as with respect to the liberty of the injured party to disengage his word, in the other articles ofthe treaty." In a note however to these wordt the principles as received in modern times, and the reason opon "which they are founded, ar,e clearly laid down Qjid explained, " When a new occasion of war is given iu this manner the treaty of peace is thereby broken indirectly ; and with regard to the ef- fect, if satisfaction for the ojQTence be refused. For then the of« fended having a right to take arms in order to do himself justice* end tA treat the offender as an enemy> against whom everything it lawful i b« may also undoubtedly dispens9 with obsorviog thf "V I ^.,■■^ •»• :i-fr: -f V ■■«:•' . t 23 ] loA^ilionliofi^d ))ea6e, thotUgh the treaty liasnol lbe«ii formalty t>roken with regard to it« tenor." — This distinction can scarc«} ba of use in these days, because treaties of peace are conceived in such a manner, that they include an engagement to li?4 in amity for the future in all respects, ao that the least ocCa* aion of war how netb soever it hie, may be deemad an infring6<^ ment of the most important articles of the treaty^ It will be found that the treaty of 1783 contained an engagement that there should be a firm and perpetual peace between the two countries, and thai feuch engagement was violated by the declaration of the late war no human being can be permitted to doubt. 1 am therefore bound to declare, that the treaty of 1783, and all the privileges depending thereon have ceased. 1 HAVE now fully (innsidered the grounds of defence in this case, and aa I do not perceive eithef truth in the distress, or •trength in the right, set up by the claimant, I feel myself com- pelled to pronounce this vessel, and the goods laden on board of her, to be liable to confiscation, for a violation of the laws of trade and navigation. In pronouncing this judgment, I derive a Consolation from the reflection, that my errors ihay be corrected by an appeal to «»ne of the most upright and learned Judges the world ever saw. iProra the decisions of that tribunal I have humbly endeavoured to draw the principles which should govern me ; and, I trust, that when the solemn scrutiny to which this decree is open shall be made, it will he found, that while my labours were directed by a •acred regard to the interests of an obscure ahd indi(2:ent foreigner, 1 did not forget the rights and the claims of every British subject, nor relax, by a feeble construction, that uoble system of lawv, apon which the wisdom of ages bad reared oar natMoai prosperity and grcatnesi* m riNin. ■*#■" ,i!i^'- ' V ■•*;■<;*. .V 1-f . • ..^i-- **! M.i: '■(.^'■^ •■■?.... ■',^S^: *,-'. r'-A'. V ".