IMAGE EVALUATION TEST TARGET (MT-S) 1.0 ■^ IIIM IM 2.2 I.I !!: ■;£ III 2.0 u ^ 1.25 1.8 U 11.6 Photographic Sciences Corporation ^^ \ ^N^ \\ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^^ . J'il :et ie vue ;ion The copy filmed hare has bean reproduced thanks to the generosity of: Library of the National Archives of 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 spacificationa. Original copies in printed paper covers are filmed beginning with the front cover and ending on the laat page with a printed or illustrated imprea- sion. or the back cover when appropriate. All other original copiea are Vilmed beginning on the first rage with a printed or illustrated impres- sion, and ending on the laat page with e printed or illuatrated impression. The laat recorded frame on each microfiche shall contain the symbol ^^ (meening "CON- TINUED"). 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Las diagrammes suivants iliustrant la mtthoda. 12 3 22X 1 2 3 4 5 6 >..»-»..»«» «»••»»>. >•! .■!«•, .»_»«*.»_« .»-»-»-»«l »^«»A«. ••<••«« .•«•.•*<»«. ,.. ,..4., ,»,..,„ |..,«,^^„„,„,..,..^,.,,,.^.,^^^^^^^^^^^^^^^^^ THE QUESTION RESPECTING THE RIGHT OF THE United States of America, To the ISLANDS in Passamaquoddy-Bay, By virtue of the Treaty of i yS^^ CONSIDERED In the Cafe of the Sloop Falmouth, In the Court of Vice-Admiral'ty, for The Province of EW-BRUNSWICK. In the Year 1805. -. I ^1 % «*H»a»M»H»Nf •», »*4M»t4N«M»»»»»H». PRINTED BY J. RYAN, PRINTER TO HIS MAJESTY. (•• «- 4»4»«.4^ «,. «, ,m4m (M^lM NEW-BRUNSWICK. 1 Court of Vice-Admiralty. J Ocloher, ISO;. The Advocate-Generai,, upon the" relation of Geokge Leonard, Efqf- Qw/ tarn, ^c. Libcllant of the Sloop Falmouth and Cargo, againjl Ebenezer Lock, Claimant there- of. >• Opcninjr Argument on the pari ol the t uo.s.a-Ton. 7, & 8. W. 3.C.22.*j2. '^HE Libel in this caiife ftatcs that Mr. Leonard, Superintendant i,b,i. of Trade and Fiflieries in North-America, and a preventive Ollicer in the fcrvire of His Majesty's Cuftoms in Xew-Hiunfwick, on the ^'ith Oflobcr, iso.,, did fei/e and take at Snug Cove, in the Hland of Campo-Heilo, in the County of Charlotte, in the Province of New-Brunfwick, the Sloop Falmouth, of the JMUthen of ninetv-three Tons, under the command of Ebenezer Lock, with her cargo then on board, con/i'ding of I'lailier of I'aris and aliedges as a caufe of forfeiture, that the faid I'lailier of I'aris after the .-ith Mairh! lf.98, to wit, on the 22d Oaober, KSO.J, was laden and put on board the faid Sloop in Snug Cove aforefaid, the faid Sloop being a foreign built veflel, and not owned by any of His Majelly's fubjeas, nor navigated with a Malier and Mariners, or any or either o'f them, a fiibjca or fubjcfts of His Majefly, but wholly owned and navigated by /brei<>-n- ers and aliens, contrary to the provifions of the Statutes in that cafe macle and provid'cd. By the Stat, of William .od, commonly railed the Rcgider Aa, it is enaaed, that '•after the :,',;th March, ir,9K, no goork ^r merchandises whatibcver, (hall be imiKirtcd "nito or exported out of anv Colony or Plantation to His Majelly in Atia, Africa or " America belonging, oi in his poireflion, or which mav hereafter belong unto or be in "poflbnion of His Majefty, his heirs or fuccellbrs, ox JhaU be hidt'ii in or carried from any " one port or place in the faid Colonies or Plantations, to anv other port or place in the "fame, the Kingdom of England, Dominion of Wales, or Town of Berwick upon Tweed " in any (liip or bottom, but what is or fhall be of the built of England, or of the built of "Ireland, or the faid Colonies and Plantations, and wholly owned by the People thereof " or anv of them, and navigated with the Mailers and three-fourths of the Mariners of " the faid places only, under pain of forfeiture of fliip and goods. " Tins Aa was made in confirmation and in furtherance and explanation of the provi- fions of the Navigation Aa, eminently *<) called, the Statute l -J Car. ;.'. c. 18, the l the I'ort of Saint John, as the proper pla< e for the vdlels of the Unilcd States to anchor and take in their car"uu r,. That iiuwuuch as the principnl channe! from the Bay of Fundy into the rive St l.roix or Scoodiac, commonly lb called, is to the Kaliward of the laid Kland of Camno- Bello, and between Deer-Kland anci .foofe-inand. (iyin^ to the Northward thereof) i„d Jmiuch as the Ladern boundary of the faid United States is "a line to be drawn alon- the middle of the river Saint Croix, from ,As- nmulh in Uw Ita,, of Fumlu to iti onrce, &c and tliat a I Klands within twenty Ica-nes of any part of the Ihores of the laid United States, and lying between parallel due Ealt lines to be drawn from the " '"'."."^ 7 'f/' !'"d nver St. Croix and the mouth of St. Mary's river, are comprehenr of riiinlij to Its he fhorcs of (he drawn from the c comprehended I Ulands as at the of the Province as anchored and I States/'— but if rhfrom on hoard • was feized and •nt adent of the 'ort of Paflama- ither of the two d to be reftorcd of the Libcllant, OTue. was nniiecedliry, le I'rorcciitor, to ^vithout contro- fing uj)on thole lotk a forfeiture rcufled upon die 1 into conlidcr- latiirally prcfcnt fly and the Uni- p was anchored f to the United Irawn along the ts fource, &c. cr St. Croix, is nd and Moofc- e United States, the river Saint the limits and ' or before the are not viholfy 's of the River ' States, and as III. < III. That tlic nnchorinp, iyinjr ar.Aln.dlrifrxnlhriniftrol'i^orinfioiiinnlcaninrili/^i irf/r/n nt the place vlirre the Sloop was lii/cd, lias I ecu for a loni- time fanclioned by the (onciirrciit alUnt of the (Mlicers of His MajeliN's C'ullonis al this I'oii of .Saint John, and at the Port of l'a --Scotia ; and this queliion was referred under the r,i\\ article o'f the Treaty of Amity, C nnmerce and Navigation, between Mis Majefty and the United States, to the (inal dccilion of Comminioners, who were by a declaration under their hands and fer.I., to decide what River w.ns the river St. Croix, intended by the Treaty of Peace, and in their declaration to give a defcription of the River, and particularize the latitude and Ibngitudc of its mouth and of its fource, and both Parties to the Treaty a- grecd to conlider fuch dcciiion as linal and conclulivc, lb as that the fame (hould never thereafter be called into queliion, or made the fubjett of difpute or dilU'rence between them. To determine then wlfat Illands at the time of the Treat\ were or theretofore had been within the Province of Xova-Scotia, we muft in the lirll "place refer to the original Crant of that Province to Sir William Alexander, in the year \(;-2\. It is well ki'iowii that the decifion of the Comniidioncrs under the 5th article of the Treaty of Amity, Commerce and Na\igation above mentioned, with regard to the identity of the river S't. Croix, was dichited and governed by the boundaries of the Province ol" Nova-Scotia as originally defcriijcd in Sir William 'Alexandek's Patent, and that the river St. Croix, men- tioned in that Grani as part of the Weftern boundaries of that Province, w.is the River decided to be the river St. Croix, truly intended by the Treaty of Peace ; bv recurring to that (Jrant we find the Illands originally forming a part of the Province of" Nova-Scotia, as far as refpct;is l!ie prefei.t queliion,' to be thus deferibed :— ".7/c///r,''«w cl eunprehen- " dens iiUrn pnrdirtns mans or:is littoniks ac eanim riraimferentias a nnri ad mare omncs '^terras conlinentrs cum fluminHms torrentihusjinilms, littoiihus, Insclis ant marilns jacen- "Jibiis prope ant infra fex leiuas ad alirpiam earumdem partem ex oiridntlali. boreali ant "orientah parti'./is orarnm liltoralinm et prwxinctunm earnnnlem." And in conformity to fins original Craiil of the Province of Ncva-Scotia, we lind at the lime of the Treaty of Peace, the fame river St. Croix to be a part of its Weftern boundarv , and the Illands form- ing a part of it at that time alio (as defcribed in the Comminions to the Governors of that Province) to be all Ijlands idthin fix leagues of any part of the Coall. It is well known that Moofe-Ifland and Dudley-Kland, the latter under the name of B St. a that they rnnainni .nuin- tUc a.h.al junl.liH,: , ^ c Vm n c of W-^s'" '"' ' n T (Governor n.^c,K.K, of ,h:U La.c, n..Jn,harc.;;;r(S^" t 1 :f h/ KiJc^!; Nova-S.o,K. aoa.n.i ,1,,. lef.le.nen.s .nadr nt St. Andrews. . !a ,n ^ I ho Td s K i, f \ Hi ward „( ,lu. m.-r .Nfa.aoua.lavi, , as hcin. a part .,ni o Sta. ' ? > 'n'rhufc s V i" (laim was lolcrrcd to the il.n. Sonriarv nf Mn u> I „r.l ^^,.K! ^••^"''♦h»'ttls Ih.s M 11 ,all..d npon o rdulc a ...n.plian.c wi,h ,lu- rciuiMi.,,,' wlWrl, f^; iS .nak Im the .v,n„Na o II,s fuhjcils n„w in pcHFHIio,, of I.a.u s nn the Wcncrn idr of? 1' ;m.T Ma.a,.udav,,, .alK-d .he Li„Ic S,. (V„i., „„ ,„,,,,„ ,hac M W I^d tt^r^^r S . C. OK o Srood.a, , wh.rh la.lrr mud bo . .,n(idoml a. the- li.u- <.f IVpan..io. and His ;• ii i;!o:::or,hor unds."" '"""^^ '"^ '•'"''"' ^-^ '-> =" ^"•^^■^^^' '- •''' p^-^c' ";^ Tins drciflon on the part <,f His Majefh s Covornmcnf. and the c-onrcc.c.r noTof M.n n.a.n a.nod by ll.s Std,io6b. pn, a (iop 'to all n.r.lu-r . on.plai, ( w ,On„ ,u^S tott nncnts and there ran be no doubt, il" the lanu- conduct had been p"riS .",h ^ sard to the Iflamls, that Moofe-I/land, Dudlev-Kland m.f VrrA^Zl in i ,T ^? .he other ,„an.,s in I.amn.acp.oddy-Bay. have'at !h^ ch^t ^ £;^^r^.:;^^ ponHbon ol ll,s Majedys Subjecls, and the prelent eaule would ■!e;crlVc^id an In the mcth of November, . :« i, Kew-Urunfwick was crefled into a fepantr IVoxinre. In the year 178,7, this Province was divided into Counties, ami the Coun'v of Char « e was l,ounded and defcribed as follows, ^iz. "bounded « , the S^.lh bv L Bav , f Jl>'l'l l'>[k>>''mnld,j, niciud.n- the Illand of Grand Manan ; on wd vJZ J A^t North Ime Iron. I'o.nt le I'roe. in faid Hay of Fundv, rnnnin, i,uo the tWn- tl Coinxs of SefTions and Inferior Courts of Common Pleas were thrminon in .1,^ r inhabitants of Moolc-Iiland, to Icne as Jurymen m thofe Courts, who allcndttl arronJ- «n°tt'!;!l^crf'lnt'i;/H,'i.^""''"l'' ''''.''^'^f Governor of the State of Martachrfms- on the Jtli ol Sept. in that year, he wrote a letter to (Jovernor CARi.rrov- in Mh'ch he amplained of the Government of New-Hrunfwick. for -alfertin-r a rla^,^ »„ \fLf ;;l.and, Dudley and Frederick-Klaiuls, in advertilin, and S. rheXh^.^^tf Mooie-Ifland to attend the Courts at St. Andrews, as Jurvmen, wl rob he ™niy^' «' j;:.ss!;^:nixi;;^st;::i^'^'^ -' ^^--'^-^^ -^ ^^^ ^--^ «' "tion from either of the judicial o(licci-s of (Jovernmcnl vetJc-innof [mT.jX,! .h .^ Count) ot Charlotte, he is dearly warranted, not only bvfhe limits of hK h;,5l5u-i.-l but by the exprefs terms of the Treaty, which referve\o GreaN S^ „ all L^ " d' "as now are or heretofore have been within the limits of the Province orNwlscoti"" " con^him wafimdf"' '" ^""'"°" '"'■^"^" ''"? ^'^^'^ ''■^'''''' -'^ - '-^^^ 3-''i- In January ITSG, the fird General AfTembly in the Province of Neu-BninriVM-' w;i called. At this Selfion an Aft of Affembly was paded, dividing the l•e^v i?" nrl; into Towns or Paridies, and the Paridi of Wed-Idcs, in the Countx of (liarlotte is uS V dcicribed as follows :-'^ The feventh Town or Parid, to be called, known I.u.in'nift " d. ul trm"'.'"^^'" ""'/"rn ""!"" Deer-Idand, Campo-Hello Idand, Gra.d" i t. Idand, Moofe-Idand, Frederick-Idand, and Dudley-Idand ; with all the Iclfer Idands con- tiguous to them, not induded in the Towns beforcmentioned." After the padins of this Aft, not only Jurymen continued to be fnmnir,nc.l fron but I ar di odicers were leveral years appointed from this Idand i.ulilcriminatelv with the other Idands forming the Paridi of Wed-Ides. ' In the year 1791, a Mr. Cooper, ShenfTof the County of Wadiiugton, tlie next .id- jf)iniiii; f tcr< palpnf. imuIit (X J»»I)cr, I ;/;.; — . a-Si-«)tia, iiiKil tlic loviiicc, for li»riiP .J, been rondaiiilv in ihr yt-ar ith V " Ihr 1 Vox i nee of i ihr I^lld^• Iviri"' ifliuhuffrts. This in his anrwcr t if Nova- Scotia." > further iiiii^Ji^ -Bniiifivirk ivui ilCounucsiiito c, is ill that Arl: iiid'lilihiijiiifli- t, (iraud Manaa !"er Irtan Js con- mninncl from 1 wai inhibited, iiatcly with the , llie iir\l ad- joinin"- .•oiilinc; Coiinly in the Stale of Vfnn'ad.iirclls, cpmc to Moofc-Ffiaiid aiirrd with tv iiU'o ninied, in onlir lo lolUit Ironj ilu- lnli:il>iliinls a Poll 'lax Mllillid hv the c^""'^" Mathi.'is, in l!ic iiiid Connty ol \V:i(liin<;i()n. The Iiiliahitants rc(i(icd the ]>n\ m(rii"'r»l*'! Tax, aJI'.Jginj^ ilial they were fiimmonid lo dil'duirge llie duties of Dniidl ini,' ll one (idc. aiul ilainuil at lln- lame time as American lubjcils on (lie otliir n ,{ i'*, "" i;ay any Tax ill it ll.oiild be letllfd to \sl)i. h Conntiy iluv btlon-td. t^/oner? ■ V" le;ian to trm[ioii/e and perl'iiade ihrni iliat if the\ vionlil pay il^e Tax, they \ '"iVl a(kno\s!(d;;ea as American liibjiils and thai llie (Kiieral Court of .Vfairuliiiliiy ' li' in thai (ale be jiillilitd in {rranlin- them their lands : And he fnriher i)l,d.r,.d hl,«L.lr' thrm. that if lluy vM.nld pax the Tax lo thai he (onhl make a re;;nlar -vnrrn ih f the Couit. he ^^ouhl not a^ain enter upon the llland as Shirili; uniil he had Drocn"^^^ I /" them a j-iant ol iheir Lands from the (.encral Court of Ma/liM huletts The Inh . iu)t haviny, at that time any j-rants of their Lands under the l!riti/h (;oNernment ''vi. I'l l to Ihili- urms, and lome of llum paid the Tax. lome r. ruled, and lome hlr the KJ , i 'iheie were Let. of puhlje notoriety at the time, and of which abundant tell.mon'v nnv Le at an\ time produced. ••'■■111011) may Cn.wrs of land \%ere made lo thole who fuhmifted and look ihe Oaih of MTn,.; to Ihe .Slates, ar.d the authority of the brilin, (.'oxernment was never allerM,; Snllv cnlouul upon either of ih.e Mlands in queliion : Another ciremnlianee tended to coS he Ameruans m the pollellion of thele Klands, vhich was. thai lome le / res n Z v A r. Leonard, the I'role.ulor in ihiscaufe, of American Nellels Ibund tradin-r at D < les Kland, contrary to the providonsol the fame Stalute, upon which the nrelVnt or .T, J. t.on ,s lonnded, were re lea led lo the Clain,anls. l,v the reccmmendation ol t le XV " .1 the Cove, nn-.ent c.l New-IJrunlwick, though much a;;ainU Mr. Leonard's A>i/I^s md nuhranon. Tins .ook place in the Inmmer of ,:,s,;. The relcale of thel ■ fX ^ ' reconimeudfd, not ho.n any doubt of His M.,jcllys ri^ht to the Klands. hut hec u'c the Ameruar.s were .n the adual polldiion of Imne of the.n, and it was not ihouoht pr ule.u .tthat tune, to adopt any lorcd.le mealmes to difpolRls then,, of which .K,t u e hcfc Ici/ures were at that time conlidered to be. "auuc tncic TfM s has the pollimon of thole Illands been wrefled from His MajefU ; and from thit ■ nie tiic Claims and encroachments of the American fubjeds upo„ His Ala e y s e o.^ :uid riRhis in that .juarler. have been eonllantly extending and incroafino^ L ^t rame jnealuies been purlued with regard to the Illands, whic h Took ,,laee refpedinf he ci o he tenitory between tfle .St. Croix and Magaguadavie, in Ihe years' stlnd . ? .•i.le dou!)l can be entertained, that the yery valuable trade and lilheries now <^rried o u c^ePs .^r'"c n '!'""' ''"mT'' V'' ^'''' ''^'"'-y "'""^^ -^'"mercfalatulma S^ Z iciefis of G,eat-I5ntain, would have been in a great meafurc, if not totally prevented In the year iTf^.j, there were only 17 heads of families uj,on Moofe-llland whereis .Iws clav lluy probably exceed .00, and they are daily anci rapidly increa^io tS^ Jl^aiul contains about I'vooaercs of Land. ' ^ "utaiiii^. nu!. Fi ev Ihe iiululgence they experienced and the filence with which their cneroaehmenN jerc , linitlcd lo, the Americans at length, in defiance of the Navigation A 7 ami of iM tiie o t.-.r important and lalutary provilions of the laws of trade in thi^ refped nn e [Je even o the Ihorcs ol Campo-Iiello llland, and look in their cargoes c FEi er of 'is 1.0m Ihe wharves there. .%Ir. Leonard again interfered: and by the lei/ e twc, yea 's ngo, o two American vellels employed in this illicit tralDc, and their 1 fecme u\on ilcmnation in this Court, a flop was put to a pradice fo highly unjutlifiable ' vvvf n'.r '""""■ '' ''"' ''pi';!f,°''^»^'-«'-'chment fnpprefTed in one form, than it Harts u,, ",nn 1 '^l^r'Tr "•'"• ";", '"r -'''^"■'"'"■''^ pretennons; of this, llron.-er e Icn 'c .^.mnc^t be adduced than is exhibited ,n the Claim now nnd.r the .■on(idei;tion of the The Claimant for the reafons fet forth in his Claim, declares upon his Oath ih->t he rulS^rl'L'Tr' ''"'■" iP?.'''" °^\^'^^\^'^ ''^''^'•^ ^^^tween Dudley-Ifland on n.Kl the UK ,.( ol ( ampc)-Bello on the other, and thefe waters can by no noflibiuty 0, i. 1; ' ;. /, '"('/"■ "'"' l^'r.^.V^".? '• ^"'l ^^ accordingly lind that one of the re:i one flclc\ poflibilily /je/o/i:c to, or l;c to 01 ,""■,'■', ■"■;;,".■ ■■"' ""'"^ "UIIC3 , uiiu we accorciingiy iind that one of the n-il'mr- •.^N.:!,!;;::::ilSS:^!"-^^""^ ^-^ ^^^--" ^-r-mand and Aloole-mand. lying to Z now' hlllj^ Americans are not contested xvith having wrefted from Creat-lirilain, and witfi vvh h ht f '" "' iovere.gnty Atoofe-Illand, Dudley-Ifland, and IVedc-rick- lla ul to h ah they have not, as will prelenf be more fully fliewn, one s,,ad- uf n~-h, ■ hcv arc iiot contented with a nght of >vater.way or navigation throWh xi cominon -incl neat^Tl channel rhannri 10 their nioir.y of the St. Cw\k ri^ .r. from the mnln rhnnn.l or thnt nirt of th- ay «l lumy wh.rh hc-s „„ the outli.le of ,!,<• I1I,„k1s; whi. I, .o.ninon h mnd !?«. I, flaiul.n^ all ilie bars in if, i, liiirKicnt C.r (lu> p.Ki;,,,.. of the hr^'c-li Hum h . .' ,',' m the Hay of I'nn.ly. an.l is ,he , hannd ,H„aliv il' „. i a ' u • \ 1 ,!;; .7^ Amoruan vdlHs paditiR to and from .he river St Croix I I f • .Iw' i . ^^ Hunnd l,v the Ka.i end olCan-po-lldlo ninul. I,,;' ::.; ';;;!' :,'Z 'dn^S':; the ^vater l.onmiary line between His Nf^jc-liys .nritory ami that .,r ti^Aj i,c. S r. 1 a prelude, without doubt, to an ullim:,.e elaim to the l(!,u„l ..l(a,np.-Hdi , d V,',^ property and lourei^nty : Jle .hat however nsFt mav, thev rmw ,1. in, the wh | ''o I waters above .nenfoned as a la,, and le.urc- alyhun Iron, a violation ,!,ere. o I <• N, ' «ati<.n Laws ol ( re:,t-lhi(a.n, the dne oblWvanee <.r ,vhi.h is fo hi-rhlv impo i ,o he mar-tune lire,,,,, and .u.erelis : Th:,„his is the objed o,' the pre.en ^, " W ^ •u. s „,a,,,lell Iro.n that part of .t i„ .vhich the Ibrei.r,, Hea an, e of ,|,e Sh, | [ (hal he.eal,er no.ue) ,s n,.-n.,oned; theClaimnn, .leHarln. that this elearan ™^^^^^^ ^""••' '«' <;"ai.le hun to j;,, and " anchor his Sloop oUSnu-r Cov .he,v to n.ul f o " on board a ea.^o oNMailler of Paris Iron, liri.ilh velleh; hi,,, her ^ ' • ,k I ^^ ;>..lv .o be;. V//W the Points or Head-lands lorn.in.. Snu, (^.u.." N w'bv 'n , peM.on o ,h. Ma,,, ,t w.ll be ieen .ha, a line drawn^.n-oirSnu.^ Cove Iro,, o, ■ „ hi '...nts or H..ad- and, to ,Ik- other, will U-ave nearlv M- .Mr o/%- S,r Z,rZ^n^ w.-en anjpo-Dullo lln,d and Dudley-Ill.„,d, .;/ ,/„■ .,////;// ./Tu.i, i ^ a Vi f t^h^^^ ^ aun hould be ""l>l' /" il-^ xounr, 6'-^-'"l-i ->/'- ihc Inn.t. and /.nndaru^o/heal LnilcdSlatrs (.-xcrpl snrh Isands as at tlwtinwofor/>rforc tli. Treat,, oj Peace of i^s " icerc zct/iin the limits of the Province of Kova-Hcotia." ' ' '^ nelirin.nd'iri t"u \!\ ^"'i''""'"*. '"'"■ '^'^ ^'^''^ ♦'•'" "^^- '^^^'^ •^^t^-^^n (^^mpo- /,// .'"''/'^ ;'''•'•''• '^'^'"'■'^ „,e Sloop was anchored and feized, - arc icholh wOV w tl , ^^""^> -'"•"•' ' '-""» I''ederKk-I(land, but Cfliipo-Bcl o Kland alio a.c uholiy withu, or belon 'r""'"' ^^'^' •'>■ "- --'--boundarie'of eP^ ;:c i e f r '■ ,'" ' '" "'■""^^''' '"'"'"^ ^'^^•>' ''"•'•' ^^^'"^'"1 '■••»'" ^-^'l "'^' J-^'''>"cotia. botha titsori-inal creation in I r;:.'!, and at the tlmi^ of the Treaty of Pea-e n 1 T8J, were referved by this Treaty to His Majcliv . " I SHALL now exainine rT,orc particularly the exprefTions made nfe of in the Treaty in m .-egard. Ihis cannot be done more forciI)lv !han bv adoplin-r the rXiin l .nX ide of by his Grace the Duke of PonxLANo (,n this ful.jea. in 1 is lette. to t Go^ent lu^^h'S ^ "r"n"r ^" !'-,«-— "•' N.;va.Scotia and Ne!;^BnZ S '' fer -.tio 1 i. 'Z\y} " '" \'^'' '"'/"'■ '='"^- " ^' '^ P'-'rticularlv worthy of ob- iciyation. that in the above mentioned article oi' the .\mcrican treaty of its 3 the ex- " oL^^\i^"S^""% •^^"'^'''^>•cnt to that part of the fame article which afli-n,; Anrtortheh. ' r / ^";'"'''y'^^• <^^"'»pr''}«'"d,nn: a!! hhnds :cithin -0 /ea^^nes oflnn, 4;ll f r -f ir ^'T^ ^■'''''' ^'•- t- '•""'■^•

*^""v the above exception is valid even a-a nil the right ol An,erica, to all Islands x.ithin :o lea'n,rs of an), part of the " ^n^he 14; otk\ ? '""r '^"' ^'!''"'. '^V" ^''^'"-^ ofAhva-Scotia-lndccd it is up- -din' m, n JT' "K ''" ^ ''"''"'"' 'V^A"r,v-.SVo//,7. which nothing in the prece- Srs con, nn, ■" J^^-"'" Loi-d GKExyn,,,, then Secreta,-y of State for foreign af- lairs, communicating an extia6t of a letter which his Lord/hip had received from Mr. LiSTON, or thnf p.iH of tlis I h.iiUK I, notwitli- [ii lluit Irwlo with- •s niiidc iil'f of |>y • thfii- \h ;i decj)cr m (his (Iianiu'l as c L'nifcd Sjatos; — ■iU'll(» nlcir, in lull the whole of iho Iicre, of the Navi- impoKant Jo her MIS let up ill fhis r ihr Sloop (wlii( h t Icaiancc was oli- V to lie and take iU'd"; Jakinir tare Now by a bare iii- IVoin oiu- oCthcl't; 'Ci/n or icnttrs Ijc- linc; and (il'tliis vous lor tarrying S tluTc wafci-s is, loii^ the middle of r, tS'r. .-i/id I hut nil mid lijiniT In-txccn lilt Croix, Dud the I'ld.vii's of till- s;iid '>/ Peace of \-.H3,) between Campo- izcd, " lire xclmllij )p()(ition not only Kiaiu' alio, arc ich of tlic above cs. I'crond arfiric oC laf no part of the le United Slates," s of the Province vliich was within 'w. Jsliiiid.'i witiiiii tiie " Treaty of ' of Nova-ScvliH." ands in Pafliima- ovinre of Nova- ■aty of Peace in in the Treaty in rcafoning made to Lt. Governor N'ew-Brunfwick, r' worthy of olj- )f ITS J, the c\- Jiiii till'- limits of cle which afTi"''» '^M-'allv participate /.I XhfofL'nd.r-!" !>'':' '>» pa". ^^e or navigation o never In- contlr ued ino a ' hofe ter ^o V he ll? T ^'^' '", '""''^^ ^'"'^""" ^''"""^ '^'^^ "'"'^at nation through .li J::SX m:"';nS!;'J:Ji"f 'V'^ '^^'"^ '•' ManachmVlts (which had alwav. riL'htfnfh/l/l.;i u A V*^*" ''^'''"'' "^ fcrntorv in that quarter) V deduce' a American nrTi' Campo-Bello inaiid, by far the moft conlidcrabic If and on the ;^^ and it;:ig:;;:srstSr '^ '™: -- '- ^'^ ^^-^ -> ^'" P.nbmon;p:!: Btrr I appreheud that it may be clearly demonflratcd that there is no ftich omitted ^ cafe IQ cafe as .TaJn-c Bevsok rnppofcs, and tint there is a romploat fea-boaivl brcm!) w o''i i' 11 ""•- fd l)V the Treaty ol' IVacc l)ctsvcen the lennination of wli.it he calls i.i S>.it.ijr.i .i.ii the coinineiueineiit of the Ralleru boundary of the Initcd Slates, Mr. I.isroN-'s obfcvvation to this clTetl is very perliiieiit, nain;!l>' — f!rit 'vith r.'rii'd t ) Jiulire Hinson's qiicllion, "the Briti(h (lovenimeiit may be JuUiiivvl i,i maiiK liiiMij;, th it " the qiiellioii is already finally decided; the !)oiindnry has been (i\ed by t'u C.):n;n;!- '• lioners as far as //ip mouth of the St. Croix, and that River arcordinij; to tli? fenfo of t!i3 "Treaty of Peace, emptied iti'elf immediately into the Iby of I'midy ; for i;i .\r tmcit/s " iVfap, which was before the Minillers at the time of the Nej^otiation, a. id whicli w is "therefore the authority to which it was natural to refer, n) fuch Bay a; the Bay of " Pad'amaquoddy is laid down, the whole Arm of the Sea which water> that j)art of the '•■ Coad being comj)rehended under the general name, of t!w B;>ij ojFunJ.y. hi confirmation of Mr. LisroNs reafoninjij it may be obferved, that the cd article of the Treaty of Peace dei'cribini; the boundaries of the Unit.\-l States, a'ld the dc-Iaratioi of the Cominiflioners under the .'.th article of the Treaty of Amitv, Coinin -rce and Navi- gation, explainini>; and deciding the only doubt that had aril'en in the cnnltrurtion of the :.'d article of the Treaty of Peace refpetfing the Ijoundarv, mult be confi Icrc i as Ibrnin'' but one act or inltrument, and that the declaration of the Comaiidi )ners relpccling l!ic identity of the Hiver, the local fituation and polition of its mouth, and of its fo.'.rce, muil have the fame operation, meaning and conftriicHon, as if the contents of tint declaruion had originally made a part of the del'criplion of the Ijonndaries in the ^.'d article of the Treaty of IVace ; otherwife, the declaration inltead of explaining and deci.iing llv inten- tion of tlic Traiti/ of Pc'irc with reipect to the doubtful part of the b>und;.!v. wjuld operate to the ellablifliment of a new boundary not contemplated by the I'reaty of Peace, which was bc)ond the power of t!>e CommifTioncrs who made that declarati m. Accord- ingly, the (iftl\ article of the Treaty of Amit\ , Commerce and Navigation, pr'ivid's tiiat the Commiilioners fliall by " a declaration under their hands and feals decide w'kV River " is the river Saint Croix in'oukd hi/ t/ie Trcali/ of Pence ; that the faid de'laration (had ^' contain a defcription of the faid River, and fhall particularize the latitiule and lon^iture[fed and intend-d in the Treaty, nainelv, its nioutli in the linif of Fundij. The mouth of the River is in t'lis declaration drsrrHied to be at cToe's Point, and its latitndc and longitude are accordingly particularized in the declara- tion ; therefore the mouth of the River thus described and pnrticnlari-.'d, and the water's into which it empties itfelf at Joe's Point, mud be /// the Il/ij of Fundi/, or a })art or lec- tion thereof. Hence it follows that the Bay above mentioned, fomctimes called Pa'/Ii- mni/iioddi/, but now known by the name o^ St. ^indre:cs Bay, into which tlie river St. ('roi?v ciTipties iti'elf at Joe's Point, mud have been contemplated by the framers of the Trcatv of Peace, as being in or a part or fertion of the Bay of Fundy, and mud have been fo intended by the Trcatv. The defcription of the boundary in the Treaty of Peace, is ii])- on this fuppodtion perfertly clear and complete, but on any other fuppolition it is pal- pably inconddent with geographical farts that cannot be difputed. TiiF.iii^ is then no fuch chafm in the boundary of the United States as Judge BrNsoN- fuppol'es ; The mn/n Inud of the United States on the fea-board is by the Treaty of Peace of nereditv bounded by the fliores of the United States from the mouth of Saint Marys river (o the mouth of the river Saint Croix, "' comprehending all Khnds within twenty " leagues of anv part of thofe diores, except the RIands that then were or theretofore *' had been within the limits of the Province of Nova-Scotia," all the Illands in this fup- pofed chafin or space alluded to by Judge Rf.nson being within the limits of the Pro- vince of Nova-Scotia and confcqucntlj refcrved by the Treaty and Hill belonging to Great- il : Sr.ltilJlM .l.ii ir •f'.th r.';i:\l f ) inaiiit li'iiii^, fhit by t'lj C.):n;nii- I th» ri'iile of t!ij or i;i M r-iri.T/s , a. 1(1 w'licli Wis y a. the Bay of tint part of the '!/■ tlio Cvl artific of I tiie dc ■iar.itioi nil 'ive and Navi- Mirtrurtion of the li'iv i as fbiMfiiiT' rs relpccliiii^ the >rits fo'irce, mi! that jiart or leclion of the Ba\ of I'undy nito \Nhuh the waters of (he river Saint Croix at its mouth eniptv thcnifelvc.s"and conlequcntly where in the terms of ihc Treaty of Peace (l.e boundaries on that part " between Nova-Stotia and the United States touch the Bav of P undy." ' In conformity to this fvidenlly jiift and onlv fair and conliltcnt conrruclion of the Treaty ol Peace, the County of Charlotte,, (as has been already obfervcd,) was confiitu- tcd by Letters Patent under (he (.beat Seal of this Province in the vear l t.s.-;, and < onfirm- cd by an Act of Afiembly in l T,s(i, under the followinu boundaries' (o wit, '• On the .-^oulh " ^'>.' 'lie Bay of Fundy, on (he \\( (i b) the river Scoodiac or St. Croix, and the la'/hrn Ihore "oj the Bail (>/ 1 aJfuiuKiiioddi,, inchidin.s; the Kiand of Grand Manan, &c." And 1 beo- leave in this place humbly to inlilt, that this and every other Court efiablinied in the Pro" vincc, mufl be j^ovcrned in their decidons by the exiilting- laws of the Country. By the Treaty of Peace the mouth and fource of the river St. Croix were points of cqua importance with the identity of the River itfelf, as upon the fituation of the for- mer dejirndcd thecommeiKxmcnt of the I'afiern and the termination of what is called the Southern boundary of the United States, zchich united ih one and the same jwmt, and upon that ol the latter, the interior boundary line from it, due North, throuoh an immenfe traft ol Country to the Ilij-hlands mentioned in the Treatv, thefe three iiuiiortant iiarticiilars were accordiiifrly aicertaiiud by the Commilhoncrs under the fifth article of the Treaty ol Amity, Commerce and Navigation, by jjivino- in their declaration a full defcription'of the Rncr and ol its sonrce and jjarticidarizinjr the latitude and longitude of its n/onth • the oblioatu,n to alccrtaui the latitude and longitude of //,v sonirc having been diipenfcd with by an explanatory article agreed upon bct\veen the two nations for that purpofe. Now, therefore to contend that the mouth of the river St. Croix, defcribed and parti- cularized in the declaration of the Commiflioners, is not its mouth intended and exmei/ed m l.ie Ircaty oi Peace, would l5e in ellcct, to render the declaration altogethernu.'atory as either of the parties, if dinhtisfied, might with equal jjrojiriety call in (uieftion the deci- fion with relpea to the identity of the River itfelf and relpea'ing its fource, and if the niouin of the River particularized in the declaration of the Commimoners, be its mouth contemplated and intended by the Treaty of Peace, it mud, as has been already obferved hcits Mliin the Ihij oJ Fumhj, and Pallamaquoddy-Bay mull be confidcred, as it iii faa IS, a Icaion of the J5ay ol' Fundy. , If then the queftion with regard to the I/lands depends at all upon the fituation of the mouth ot the River, the declaration of tl.o CommiHioners is "final and concludve and " cannot now be called into qucliion by either party or made a ftibjea of farther difpute." But to conHder the quedion in another point of yiew, the Treaty of Peace contem- plated the mouth of the river St. Ci-oix as being in the Bay of Fundy, poffibly from the cn-cumttance mentioned by Afr. I.iston that in Mn-niELr's Map which w'as before, and prin- cipally conlultcd by, the Mini/iers of the rcfpcaivc powers, at the time of the nco-otia- tion of the Treat)' of Peace, " no Inch Bay as the Bay of Pafiamaquoddy is laid down, ^ the whole Arm of the Sea which waters that part of the CoaR, being comprehended un- der the general name of the Bay of Fundv," and the mouth of the river St. Croix ap- pearing by that Map to be in the Bay of Fuiidv. But (till, if the mouth of the River up- on unehigation, Ihould prove not to be in the Bay of Fundv, it is evident that by the Ireaty ol Peace was intended the mouth of that river Saint C'oix, which formed apart of the u-estcrn Lomdanj of tlw Provinrr of Xova-Seotia, wherever the local fituation of that Kioutn might be aicertaincd to be; for it cannot be contended that if the mouth of that Kiver St^ ( roix which lormcd a part of the weRern boundary of the Province of Nova- Scotia, fhould in fact he found not to be in the J5ay of Fundv, that any other River which did not lorm a part of fuch weficrn boundary was to be adopted, it being evident, as has been alreadv fliewn, that the [nited States were to be bounded FaR, upon the weflern boiindary ol the Province of Nova-Scotia, and that the river Saint Croix formed a part of luch we tern boundary. Wherever, then, the mouth of the river Saint Croix, fbrming a part of lueli weftern boundary, fhould be fbund to be, whether in the Bav of Fundy or in ine hay of I aflamaqunddy, it mult of ncceflitv form the commencement of the Eallern and the termination of what is called tht Southern boundary of the United States, or the oiijea of the Ireaty in this rcfpca, would be entirely defeated ; and this will fairly ac- count for the provifion in the Treaty of Amity, Commerce and Na\in;ition, that the lo- cal fituation o the mouth of the river Saint Croix fhould be afcertaine.l bv particulari- zing its latitude and longitude ; thus in either cafe, and in every point of \"iew, there is nochalm in the boundary of the United States; and it is not probable that any fuch quedion ns the prefent would ever have nrifen, but from (he a.rJetvofihc State of JVlailachuictts to retain and (o extend their podefnons of the Britilh Idands in the Bay of raflamaquoddy. ^ The deferibing of (he moutli of the river St. Croix in the Treaty of Peace, as being .m tnc iiay oi Fundy, when in faa it is found to be in ,a fmall intervening Bay, commu- nicating u Vallel.l). 2 this manner, to make new queftions In .Pes 0/ (h s kfn r^'"'''"'"'! •''"J ^"'"Paa.'' In Uie intention of Treaties n J ho^V nl VM '" ''""''* ^''•"' ""» o"'v '« d'^firoy nntions, but would econfiit'th, hu!" {" l".'' '''" "V' •"-"'-'-'i- I-'-ee!^ nations ou-^lu to l,e ^^overned in thril re atTo "o anc eftabh/'v.- ,d by whicir nolation of tlie faith of Treaties '"'"I^'^^'^^'O" "' them, and conlcqu- - •, ,vould be a ^y^^nZ'!^^:\:::;^ - .-^> - m ... „.,> " arifc ; we decree, we ordain we a<^ree nnJ^T, / "''' P'""^"'''"- ^'^s that .nay " fenns. and thouoh all the Sremons fn fr. T '^I'^'Vf t' '"^' ^"'^''^'"^ 'f^^'" '» r • Rive a complete and entire boundary to the vi\*l\ 'i. / ^ ? , ^'^^^^ "^ ^'^^ fo commencc^ttheterminationTS is alleyrso^r^ T'^ Y '^' ^^'^^'^'•" "^o^W to give i:, the Bay in which the mouth nfM 7 f''^^V^'' boundary. It was intended which it was kno vn and it Is trnde. th s mn^'iir "' n'T\"'''^ '''"''''^' ^'^ "^'"^ by intended that the m^uth of tL rh^fsa nt S f°^ • '"'^ ""' ^'7 °'' ^'^""''>- '^ ^^«« aary of the Province of Nov a4oiawh^^^^^^^ a part of the Wedern boun- fern boundary of the United Sta^elt^^^^^^^^^ "n"^.'' ^''' ^^""''^ ''e the Eaf- fore the time of the Tre"tv vv '^ m^^ intended that all the Illands which at or be- Scotia, n.ould 1 c\^,?n: ;rHrAhieLrdT'^:^ ''' "'r^f "''^'" ^'^"^'"- "^^^-a- in no other fenfe could the Tr " y S ^ h t^^S'l "^ '■ ^^^ any rational interpretation of it.--To deny either of fhHe "' I ^^^'J'^'^>' <;«n'i'tently with charge the framers of the Treaty with ab?L":,'r" illdt ]'£ZLm dl^ns'" ''''' '" ■<' in rart is a par, or fcflio of it Bay o[ "Zw '^'V'"''"' I"'"""'. »» >»-"'g. "hat faith or Trealics a.,d an cv,° m, mJaLjZ--' ,T r "' ", T""'"^ violation „f ,he dor, jntticc and good fai'il.Salf.h^^^f^L'';: tlfis'^SS "' ""= '"'"' ' "" ""' .» the ,,,,.,a,a,io„ ortii Comi™ "s In^frifS^^^^^ pa.tiy.hri,,,! Commerce and NaviffTfinn if*k^ 1 r <• • "'"'.aiticie ol the frcatv of Ai ii\ Wan,!, in I'allinmonodav-Barmw 7h,Klv . ,n' " ,° ' " "»"'">' '" "8^' '" »" the "f .1.0 .inal dcclalo,, if ,,.! S-„'i,S S'deci^^^^^^^^^^^^ " comprehending nnmo, which difiina rcaiy, will not, I hum-. '^s, " inirtukirin; of the >n and coinpatl." In id not only to dofiroy contrtji^Hirs i)cfwcen WiCv.^ id by whiclt iltqu- ' v would be a well as in (!«• laws," (icular rales that may prcl's them in gentral tlly clear, plain ami ig in all the particii- I decreed in a gencnil "ai'on and authorized uro, of determining h duplicity, in form- ^'hich the cxprctTiott* )e agreed upon with e upon the efleft of > admit an evidentlij OS.— '^ Eveiy Treaty nne its meaninj;-, .?* 'reatij loas drawn up ofe words we inter- interpreted in fiich heauthorofaTrea- what he zcould have n." Treaty of 17 8,3 to the Eaftern fhould y. It was intended uatcd, the name by of Fiindy. It was the Weftern boun- fhould be the Eal- :k1s which at or be- Province of Nova- Great-Britain ; and y confidently with ould be in cllea to t defigns. • St. Croix ifTucsat , form a fmall Bay this Bay of Paflh- on, as being, what fl violation of the Treaty ? Let can- lot be confidered, ght to the Klands lllands mriv be af- ', as particiilari/.d Treaty of Ar.iu,, 3 Majcfty mnil be 's right 'to all the d under thai part of the river Saint i Harbour. After Juited States their 11, follow thus :-^ [■omprehcnding coiyprehcndmg all Iflands w.ttim co leagues of any part of the fl.orcs of the United Sta es, .vWly.ng between l.ncs to be drawn due Eatl from the Points where the aforc- la,d boundaries between Nova-Scot.a on the one part and F.aft Florida on the other - fliall relpea.velv touch the Bay of Fundy and the Atlantic Ocean ;" then ?he refen' : t.on follows m thele words, " excepting Inch Hlands as now are or hkctofore ha e been - w.thm the hm.ts of the faid Province of Nova-Scotia," the operation of the exceptTon a( afleaed by any precedmg part of the article, can be afTcaed by the words of theS fion only, and the Iflaluls comprehended in the exception muft be a part of thofe inch - ded m the cetHon agreeably to the maxim, exccptio probat regu/am. The words fo mini the lecond part of the de Icnpt.on of the Iflands ceded bv the^Trenty, mull be ntenS"? have lome meanmg, .n alccrtaming which, the conjunaion and con^caing the two parts of the defcnption muil be conflrued either in a copulative or di.sjunaive lenlb • if iinhe la tcr, the exception which follows in favor of IliS Majefly, wilUpp y '£^^^^^ o " ch of the deknpt.ons and all the Iflands in that part of the Bay of vLly Sed Paffamn- quoddy-Bay being w.thm ao leagues of the fliore of the United Stales and therefore wthm the hrtl deicnption, will belong to His Majefly by virtue of the ex;ep"ron be the mouth of the river St. Cro.x the fituation of which inufl detertnine whetheror not rh^v are with.n the fecond dcfcription ) where it may. But if this c^nneaTngrteris con£ ^ ed ,n a copulative fenfe and all the words therefore as forming but oL de"cr p.bn i will be neceflary that all the Iflands in this feaion of the Bay olTundy be found wkbitt the lecond as well as the flrfl part of the defcription before the exception c"n apply o fa^ e and reierve them to Great-Britain ; on the prefent occafion I will interpret th s^co^ juna.on ,„ a copulative fenfe, becaufe this is the fenfe mod unfavorable K Maieftv lo far as relpcas the Iflands in queflion, in which the words can be conlrued and be c-au e, ,f .t ,s taken .„ a disjunaive fenfe, the defcription in the latter part S Sence will be altogether un imited. as the Ead liius mentioned in it may be indefinitely ex end! cd, involving the moll ablurd confcqiienccs. "'"timiieiy extend- tlus nrrnhe delvw '^'°" "' T" ^' r'^^'"^ '° ^"^ '^' ^'^ ^^'^ mentioned irt tins pa ol the de cnp ion, in order to afcertain the Iflands lying between them and con- fequcntly included both in the grant or cefTion and the exception Let a line then fee extended due Eajl frotn the middle of Saint Marv's river where it touches the Athmt.c Ocean till it becomes, and is thence farther continuS "0 lel'cues na S fthTf'thetef if "Z^r f 'r?"'"-'^^^ °'. '^^«"- ^'- t mtef fhe" momn 01 tne river M Lioix at Joes Poinf, where it touches that part of the Waters of //;^ Sif t ^/' "'" VT^'i' '^'' ''^" '^' '^'^"^« ^" PafTamaqnoddy-Bay are not oily b w er.he/ei^l'rrT/'''n'^r' ""^ '\' ^"'^^^ ^'''''' '^"^ ^^e alfo^ncLed i S being at the wef.ern paflage, where the waters in that paffage [nTmix whh "e w^^^^^^^ Z S; 'Ziddli'/x^^'^^ r""''^', ''"' '^' '^"^ ^'" '•- ■" ♦'^'^ behalf memS " he Ks'i,?Pn(^lmnn.^ u i "'" "j'f .''°'"' ?' P'^'^'' '' ''^''^^ ^e found that none of To rZu ^^"^"Y'qi'^^'dy-Bay would be within the defcription of the Iflands ceded bv tlreSe Z ^^^T^'f^ ^1' "" ^"^ ^^^^P»'«"' ^"^ that the exception wbuld in this cale reierve the Ifland ol Grand Manan only to His Majcftv from the ooeration nfthl il nei-al words of the cetTion and the Iflands in^ PaflTamaquoddy-BaT not EeTn" wj^I °n he eff" fion or exception, the right to them would be afcertained by the middb"rne of he wate^ from this point or pafiage Northerly to the middle of the river St. Croix to t rea Und ?fl nd the I.hnt ' ^'"V"^ confequently Moofe-Ifland, Dudley-Ifland nd Frederick^ Ifland, the lllands in queftion, taken pofleflion by the Subjeas of the United States fince UniteirStl " ""° "" ''' "'^""■" '''' °^ '•^'^ '"'^^'^ '"-' would bet^ to th^ of ti?;.'!^:' S cTS.'" ^''^ ^'"" ''''''' ^"'^"'°"' '^ ^'^^"^"^l «^-^-" «f the r, .uth " the fflandTn pf'^'" '^". !""" V°'"* ?'' ""^ "S"™^"' '' ellatliflied, namely, " That all " Ifland 3oo ri^ u Tlh '^ T^'"^:^' "fp"^'"^ Moofe-Ifland, Dudley-Ifland. and Frederick Jiiana, do ot right, by the Treaty of Peace of 1 78 J, belong to His Majefly." Great-B^ritain.'""'' ^'°'"' '"' '^'' '" '^^ ^^'''^ furrounding thofe Iflands belong alfo to on 2i'ch"h"hTi"ee?ifl.hl'fl.'f P"'"f ^^ ^u^'" '"^'^"'g^ted, and the various grounds up- co J h^ 1,7 r, .^"^bhflied, preclude the necelTity of a feparate difcuHion of the fe- cond, the latter relulting as a necelTary confequence of the former. that^LTarTKV"''"'^''* Vj^' l''''^ ""^ ^''''' '' ^'^ ^een repea.cd!^ obferved, the Treaty ind nlw., *k r u 1 1*'"""^* '''"'* ''■''''^"'' '" q»eflion, wei (. ;U the time of tne ireatj, and always theretofore had been within the limits of the P.ovia..c of Nova- ^ Scotia, 13 Scotia, from the firfl: cnabllfliment of that Province in the year 16!21, they miift canfc- quently (till belong to ilis Majefly, in full property and fo.crcigiity. As the whole Territory of the United Stales .i>, well as the Province of Nova-Scotia be- fore the Treaty of Peace belonged to (Jreat-15ritain, it will be fudicient, in addition to what has been already faid, to obferve, that the I(k;nds and waters in quqlUon never did before that Treaty belong to nor were in polfetlion of the adjoining Province now Stale of Mad'achiifetts, and it has been (liewn that thefe waters were not ceded to (he United States by that Treaty, but on -the contrary, that the United States are by the Treaty bound- ed, in that quarter, uyimMhcacslern shore of tfic Ihii/ nj' Pussmmiriunildij ;\\\Ai.'cA no waters whatever arc fxprefshj included in the ceffion, from the mouth of Saint Mary's river, to the mouth of the river Saint Croix, and in the interpretation of Treaties, fays Vattel, — ■ Vaiiei.h.B." the Proprietor cannot be deprived of his right, except fo i.w prfc'ischj, as he rclinquillies «'7')3"5-" it on his part ; and in cafe of doubt the prefumption is in fa\orof the PofTellbr." And again, " f he cedion of a right or of a Province, in order to olitain Peace, is interpreted ^ 3°*^' /■// /7,v juoxl confined sense." And it is remarkable that he gives the following infhince in illudrationof his doflrine. " If it were true," fays he, "that the limits of Acadia were " always uncertain, and that the French were the lawful pod'cdbrs of it, thatn:i'''on would " have had a riirlit on their side in maintaining that their cedion of Acadia to the Knglidi " by the Treaty of Utrecht, did not extend beyond the /nn-rozvesi limits of that Province." c>. I come now to the third point of my argument, which may be confidered alfo as a neceffary confequence of the points already dil'cudeil, namelv, "that a right of water- -way, pad'age or navigation only, can be claimed by the United States, from the maia "channel of the Bay of Fundy to their moiety of the river St. Croix." TiiR quedion dated by Judge Benson as remaining to be fettled by negotiation and compact, I conceive, can merely refpe6i fuch a right of water-way or navigation, to that moiety of the vSaint Croix, the boundary river, which is nearcd to the American teri'torv, as this waier-way mud neceflarily pafs between the Hlands in Padamaqiioddv-13ay, aa' of which have been diewn to belong to His Majedy ; indeed the cpiedion evidently arifes from an implied concedion on his part, that all thefe Idands do belong to Great-Britain, becaufe if Moofe-Idand, Dudley-Hland, and Fredcrick-lCand, the lilands in quedion, had been fuppofed by him to belong to the United States, no (juedion could have been made, but that they would have had an entire fea-board boundary, and an indifputable right of water-way through the wedern padlige by thefe Iflands, and along the wellern fliore of Padamaquoddy-13ay to their moiety of the river St. Croix, which is indeed the patfage that they uniformly make ufe of; for although there is a bar acrofs Inme part of it, which is dry at low-water, there is fufficient depth of water, when the tide is in, at lealt for any .vellcls they employ in this Navigation. That fuch a right of water-way only, was in the contemplation of Judge Bknson, ap- peal's from the whole of his language upon the fubjefl : He contends, that the Treaty of Peace " intended that where the Eadern boundary paded through waters that were navi- '• gable, both nations diould equally participate in t\\c J\';ivin;iition ;" and to fecure fuch a right of Navigation to the United States, he propofcs — "that the boundary diould be a " line pading through one of the padTages between the Bay of Fundy and the Bay of Paf- "■ faniaqnoddy ; that the Wefl pad'age being unlit for the jiurpol'e, having a bar acrofs it, "which is dry at low-water, the next to it must be tnken, and tiiat the following line " diould be adopted, viz. beginning in the middle of the channel of the river St. Croix at " its mouth, thence direft to the middle of the chamiel between I'leafant Point and Deer- " Idand, thence through the middle of the channel between Deer-Idand on the Eali and " North, and Moofe-Idand and Campo-Bello Illand on the Wed and South, and round "the Eadern point of Campo-Bello lliand to the Bav of Fundy." Now ir is hardly to be prefumed that for the purpofe of Iccuring the propofcd right of Navigation, which was the only obje6l in view, it could ha\c ijcen intended by Judge Ben- son that the property and fovereignty not only of Moofc-ldand, Dudley-ldand, and Fre- derick-Idand, which, though at that time in the podedion of Sul jetls of the United States, did of right by the Treaty of Peace belong to Great-Britain, l)ut alio of the large and verv valuable Bland of Campo-Bello then in the podetfion of His Majedy as well as of right be- longing to him, must of necedity be ceded to the United States in order to fuUil the inten- tioM of the Treaty of Peace, contrary to the intention of that Treaty fo clearly expre/J'cd in it, with regard to the Idands; and if he did not mean to dived His Majedy of his right t,o thefe lilands, he could only mean by farther negotiation and compatl, to fecure the right of water-way, pad'age or navigation abovementioned. But if the foregoing reafoning is correft, there is no fuch chafm in the boundary of the United States as Judge Benson fuggells, and which is the fole foundation of the fuppofed necedity of farther negotiation between the two Nations, ancUit remains only to inquire what right the United States have by the law of nations to a water-way or pad'age through the waters in qnedion. Groiius b GuoTius treating of Rivei-s fays — " Though in cafe of anv doubt, the jurifdiflions on 2.c.3.{i8. " each lldc reach to the middle of the Jtiver, y< « i may phi illy they miift canfc- f Nova-ScotIa be- lt, ill addilion to LiQllioii never did rovince now Stale cd to the United the Treaty boiiiid- iiidecd IH) waters t Mary's river, to ics, fays VatteJ, — as he rcliiujiiilhes Pofrellbr." And ace, is interpreted )wing inliance in ts of Acadia were that n:''"on would dia to tiie linglifli )f that Province." mfidered alio as a a rijiht of water- s, I'roin the maia ' nen;otiation and avigation, to that nerican terr'torv, ioddy-J3ay, aJ' ot" 1 evidently arit'es to Great-Britain, s in queliion, had I have been made^ ilputable right of wellcrn fliore of deed the paffage ? part of it, which 1, at leall for any idgc Benson, ap- hat the Treaty of rs that were navi- i to fecure inch a dary fhould be a id the Bay of Pal- g a bar acrofs it, 16 following line river St. Croix at t Point and Decr- on the Eaft and loiithj and round propofcd right of cd by .Judge Ben- •-Ifland, and Fre- he United States, he large and very ell as of right be- to fulfil the inten- 1 early expre/fcd in '(ty of his right to J fecure the right J boundary of (he 1 of the fuppofed IS only to inquire r paflage through e jurifdifiions on )laccs it hfls aflu- " ally - ally happened, that the Iliver :Jiu!fy belongs to one partv, either be. aule the <,ther ni- '' tion has not got ponHlion of .he other bank //// httr, and \^hen their neighbours :cur ['frn/.'/ "» (''■e;'f-J5nt''in. becaufe th.>v h ,ve a ri..ht of navigation in the lirit.fh Channel, claim alfo a . i»ht to lie at anchor ofl' iVlLy, oi- Wey- mouthy Ar.irleni,b, I Rol). ad. Itrp. 220. 'i he Iktiy (.'aihcart, Gillcl'pic, Maaer. in mouth, or any other BrltiHi port in the channel, and there take on board from Britith venbls cargoes of articles prohibited to be exported from Great-Britain, or carry on any otbcr fpccics of illicit and clandelline trade, as the Claimant in the prefcnt inflance be juflified in the condiifl which he avows in his anfwer to the information. If we look into the articles of the Treaty of Amity, Commerce and Navigation, be- tween His Majedy and the United States, we fhall find that pro\ ition is made for every fpecies of Commerce that may be lawfully carried on by cither nation within the Terri- tories of the other. By the eleventh article it is provided, " that there fliall be a reciprocal and entirely " perfeiit liberty of Navigation and Commerce between their rcfpeflive people, in the " manner, iiiulcr the limitations and on the conditions fpccilied in the fubfcquent ar- " tides." In, the l 2th article the trade between the United States and the Rritijh H'est- hidies is permitted under certain limitations ; in the 13th article their trade with the Ter- ritories of JGreat-Britain in the East~lndies is alfo permitted under certain conditions and limitation^; in the 1 4th articleut is provided "that there fhall be, between all the domi- " nions of His Majcfly in Europe and the Territories of the United States, a reciprocal " and perfc6l^ liberty of Commerce and Navigation ;" but no provifion is made in any of the articles lor carrying on anytrade between the United States and His Majelly's Sea- ports in His North-American Colonies. Would it not be fufficient that this trade isentirely left out in the enumeration of the places in whicb the Treaty provides for the liberty of Navigation and Commerce between the two Nations, in order to determine that no fuch trade can be juflilicd under the Ti'caty ? The maxims, " exprefflimfacit ceffhre taciturn," and " expreffio iinius est cxclurio " alterius," are as jiifl and as applicable in the interpretation of pul)lic Treaties, as of the municipal law, and! it is to be obferved here that the right of pafTagc or navigation now under difcuffion, in the waters in queflion, docs not refpefl any right of Navigation be- tween the Territories of the two Nations, but only a right of pafTagc or Navigation be- tween different parts of the Territory of the United States, through a part of the Britifh territory, and even this merely that the moiety of the river St. Croix, ceded to them by the Treaty, may not prove a iifelefs acquifition, for want of a convenient communication with or accefs to it by water. But the inference I am now contending for does not arife merely Horti the omifTioii above mentioned in the enumeration of the places in which the Treaty provides for the liberty of Navigation and Commerce between the two Nations ; fo importatit an obje6l was it to prevent an infringement of the Navigation A61 under any pretence, in His Ma- jefly's Colonies upon the Continent, that in the sd article of the Treaty which provides for the communication by Land, and " the inland navigation between the territories and " countries of the two parties 07i the Continent of America," and gives liberty " to navi- " gate all the Lakes, Rivers and Waters thereof^ and freely to carry on trade and com- " merce with each others" an exprefs claiife is added, " that this article does not extend " to the admiflion of vessels of tlie United States into the Sea-ports, Harbours, Bays or " Crcelcs of His Majefty's faid Territories or into any parts of the Rivers in His Majefly's " faid Territories below the highefl port of entry from the Sea." Thus careful was the Treaty to prevent and prohibit the infraflion of the Navigation Aft, and that illicit trade which is now claimed as a right on the part of the United States. By the Treaty of Peace no provifion whatever was made for the carrying on of any Commerce between His Majefty's territories and thofe of the United Slates, and in the in- flruftions to Mr. Leonard accompanying His Majefly's Commiflion to him as Superin- tendant of the trade and fiflieries carried on, on the coafls of His Majefly's North-Ameri- can Colonies, originally given in the year 178S, and confirmed in the year 1797, three years after thu Treaty of .Amity, Commerce and Navigation, he is dircfled, " upon nc ac- " count to permit any commerce or traffic of any nature or kind to be carried on between " the Subjefls of His Majcfty and the Citizens of the United States, who may come with- " in the limits of his diftrift, in contradi6lion to the laws and regulations which have been "cftabliflied." — Such is the opinion of His Majefly's Government refpefting the right claimed in the prefent inflance, on the part of the United States, to contravene and vio- late the laws and regulations referred to in thefe inftru61ions. But by way of protefla- tion it is laid in this claim that Mr. Leonard as Superintendant of trade and fiflieries had no right to make any feizure for a breach of the laws of trade ; this is an affertion that may be well doubted, but it is unnecefTary to go into this dilVufnon, at prefent, as the difficulty is obviated by his having a Commiffion from the Cufloms, authorizing him to make feizures in fuch cafes ; and as his appointment was made for the fole purpofe of at- tending to the due executioji of the Treaties between the two Countries, his having fuch Commiffion to confirm his authority to make feizures, forms another ground of argu- ment in favor of the legality of the prefent feizure, and of the liability of the Sloop and Cargo to confifcation. From the foregoing Premifcs, it is prefumed, that an inference may be fafely drawn, that a. right of water-way, pafTagc or navigation ojiilyi can be claimed by the United States, from )oard from Britidi , or carry on any refcnt inHancc be n. d Navigation, be- is made for every within the Terri- rocal and entirely ive people, in the he I'libfeqiient ar- the RritiJJi H'esl- trade with the Ter- ain conditions and vcen all the domi- tates, a reciprocal 1 is made in any of His Majelty's Sca- !numeration of the Commerce between jullilicd under the io iiniits est exclurio Treaties, as of the jr navigation now of Navigation be- or Navigation be- part of the Britifh ceded to them by :nt communication fiorti the omidioii J provides for the iportatit an objctt ;tence, in His Ma- ty which provides 1 the territories and ; liberty " to navi- n trade and com- le does not extend Harbours, Buys or rs in His Majefty's us careful was the lid thai illicit trade :arrying on of any [ates, and in the in- to him as Superin- ily's North-Ameri- leyear 17 97, three ^ed, " upon n( ac- arried on between 10 may come with- is which have been fpefling the right jntravenc and vio- ty way of protella- le and fiflieries had is an aflerfion that , at pre fen t, as the luthorizing him to fole purpofeofat- iuUries. his having ler ground of argii- y of the Sloop and ly be fafely drawn, r the United States, from Irom the mam ciianncl of the Hay of Tundy, through the waters in (lueliion to that moie ty of the river St. Croix which is iiearell to the Amerir;in territorv, and rnrCier thit fmh right ol navigation is lo far from authorizing the tarrying on ofaiiv comineire or Inf lie ol any nature or kind, between the lubjcas of His Majeliy and the C'iti/.cns of the I nited States m iholc watei^, that any fuch commeire or iramc, is, not only nrohibited under the penalty of forfeiture of the vellel and cargo by the navigation laws of (Iieit Britain, but is contrary to the exprcfs provifion of the Treaties exiliin- between the two Countries. '"' ir. Tins brings me to the fecond ground of defence let up in the Claim namely that il the waters in tiucliion, are not iclwl/ij Kitim,. and do not uW/// belong to the I lilted States, llwy are the waters o/ the Rncr lorwiu;ht Jn- laxfidUj imported, icith- " out any licence, by virtue of the Statute 33 Geo. s. c. \:> iS" S<'. " It is faid that thefe circumdances compofe a cafe intilled to great indulgence, and I " do not deny it. But if there is a rule of law on the fubje61 binding the Court, I mud " follow where that rule leads me, though it leads to confequences that I mav privately " regret, when I look to the particular intention of the parties." — "The intention of the ■" parties might be perfe6\ly innocent, but there is dill the fa£l againd them of that aflual "contravention of the law, which no innocence of intention can do aWay." " I may feel greatly for the individuals, who I have reafor to prefume, a6^ed ignorant- " ly under advice that they thought fafe ; but the Court has no power to depart from the " law which has been laid down, and I am under the neceffity of rejefling the Claims." I come now to the lad ground of defence dated in the claim. IV. " That the Claimant obtained a foreign clearance from the American Cudom- " Houfe, to enable him to go zcith his Sloop, and anchor off' Snug Cove, zcitliout the Points "or Head-lands forming the Cove, there to take in a cargo of Plaifter of Paris from Bri- " tifli vejfehr Thk 3 7 lie places in qiicl"- iiiils forming!; Snug [)o-lk'IIo, than to )on the Libel and inant's own fhew- be ( arricd on by be To larrird on t certainly would rvcs or Ihorcs of lefencc, which is, om on board Bri- ; time faiitlioned his Port of Saint by any of the cx- • claim, he avers ficers of His Ma- icfTels of the Uni- •oint of fafl, will art ; for the prc- ifli veflels in the le Britirti Laws of m-Iloufe Odiccrs on, acquicfcence, e Sloop and her ' no avail to the loubt, be of the urt of AdmiraUy rued and applied national intereUs, policy, mud not rt of the Claim- tent Sir Wii.i.iAM leva and Cheefc, I coming to a Rri- and as the claim : to bo imported erable ufe in the an ajjiirancefroni 'y inijwrled, ici'th- indulgence, and I he Court, I mall I may privately intention of the icm of that aflual .y," ?, afted i]^noiant- 3 depart from the ig the Claims." merican Cuftom- ithout the Points Paris from Bri- Thf, 1 HE foreign Clearance here referred to is as foil "LNITED STATLS of AMEIUCA. "Diflria and Port ofl ^. "PaKSAMAQUODUV," J ^"^""^^ "' MASSAnilSKTTS. If) ows. (...) (Signed) "Lewis FiiEn. DELESDcnNiEn, " Collcaor." "THESE arc to certify all ^^hom it docs concern, that Ebkne- "ZER Lock. Nfalkr of the Sloop Faimoltii, burthen Ninety- " three Tons or thereabouts, mounting no Guns, United "States built, navigated vsith four Men, and immd for St "Mdrvics, ha\ing on board as follows, vi/. BALLAST and "VESSEL'S STOHES. Hath here entered and cleared " his laid Vefl'el according to Law. " Given under my hand and leal of onUe, this twenty- " fecond day of Odober, in the year of our Lonn, " Eighteen hundred and Live, and in the ,30th of the' " Independence of the United States of America." .(, .Tr '^'■'i. "''.'"'''y "" 'hat occurs upon the face of this pretended foreign clearance is ^a the ^e(h.l .s cleared on, for St. Andrews, a Brilijh ,Jrt or pl.-ne in the Pro nee of a this veOel could not be permitted to enter, and for which he mutt alio have known that he ought not upon any pretence to have cleared out an American veflel. «t,;.''i ""^ "''^' '''"'''■ ■' .^PP'^''""^ ''•■"'" "if" Claimant's own account of the t/anfaflion that ^vas not bomul or St Andrews, but that it was obtained to enable him lo'"S "'■••^'" ^'^^ "'-'^^^ territof^ tUo clearance wa^ mam ediy given, m open violation of the Britifh Navigation Laws, and of the expJeS jrov.f.ons ol the third article of the Treaty of Amity, Commerce and Navigation betwee Again; this Cargo could not have been taken on board this Sloop within the United il fuVh von- I "n? ^'T '-8"'a>ly .-."ported there, and if fo imported in a'Britift ^f- lei, (nth veflel mud have been entered at the American Cullom-Houfe, and have paid the Jonnage duty and the L,ght duty, impoied by the Laws of the United States Zn aS d^f " 7"^hr «""''"« '"gather to one dollar per Ton ; this clearance then Is evi- Sl n 1 P vr,'" P'"''"' '\ P">''"f"' "'' "^'-■'"^ '^"''^^ ^y '"'^■■"g the cargo on board .Mth.n the britilh orr.tory, and was therefore doubly fraudulent on the one hand bv de- priynig the inited States of thefe duties, an.l on the- other by procuring an open and n- i M.ieft an 1 ;;"^'"':';'"p-"-"^ «f 'he Britifl. Laws and th'e Treaties llibMiEg betweea Ills Majclty and the Inited States. take'^on'h;-!,^^^'''''"'''''' "'"o"'""'' ^"^ theexprefs purpofe of enabling this velTel to' laKc on uoam the cargo in quedion. hnJt'l '^'''''""'"^5 ''""^ obtained for the exprefs purpofe of enabling this veflel to take on board the cargo m qucftion, zcithin the BntiJ/i territory. nnrlTw ^T""' !?>', I^e Claimant's cxprefs avermcivt, was taken on board in confeqnencc and by virtue of this clearance. ■ucijuchli. The Cajgo then by tire Claimant's own (hewing, was knowingly laden on board the natio^n Jn tw" Courf '^^^' '"''''""'" ' ""^ ^""° ^° ''^'" '' '"'^'^ '« ^-feiture and eondem! hwJ'^.n''TK "P"*'^'""'' ''^ ''"""'^^ " '""'^ bare-faced attempt to violate the exifiino- Sh bid on thf """^ 7,.' r7' I'^re-faced avowal of fo flagrant an intention than is -xniDitea on the f ,t of the Claimant in the prefent caufc. " fof nl*''^ P''"'^y''' S-*"""^! of jiiftification feems to be that fuch a praflice has been t],;^-.f "• '"\ • '""'^'^^y *he Cuftom-Houfe officers of both naiions ;" if this be extenfiv;/! '• "'"^ ""''' '""J^'K"^ ^^""^ '^^ t^'"^"" ''' diflionorablc to both Countries, fo ^SStain""^""""' '° ' Majelly's inferefts and the Commerce and Navigation of ino- ^'"!;.^°"^^qf "«s ofjupporting the Claim il^ the prefent caufe wouhl be truly alarm- bv";.? ''T^'^y '" '^"^ ^° ^''^^^'^^ "" "^ °f 'he highed dominion and foverei-nJJ ^} making the Ports on the Britifli and American fide of thefe waters to he free Ports re- ciprocally. ►'() li (iprocllv nml to annihilate in thefc waters llie piovidous of the Us of trade and mvi. jjation ol bdth nations. ' iMhis Sloop could lawfully take in the prcfrnt car-o fnmi nritilli xciVrU ,,t fhr olirc- where it was laden on l.oard, it mull have been eciuallv laulul for ih.li- IVilill. velli'ls t„ rejcive ro.n tUv Sloop in the fame plare a ,arj,o of llafi-India or anv odur ^.,o,ls ,no- hd).ted to be imported either Irom the Inited Slates, or in foreign xen'els. into this I'ro- Vllli'C AoAiN if the eondua of the Claimant in this infJanre ran Ik> iu(ii(ied, ii mull be e- (p.ally lawful lor a Hnt.fh vedel to lie at am hor ofl' Moole-Kland or J)udlcv-U!and at any pla.e on the Ameri.an /ide of the middle of »hefe waters, and there difehar-e 'her i:ar«o, ol whatever ar.ides it may conrill, into American vellels, without enterin-r "t the Ameruan ( uliom-lloule, or paying the tonnage, light or anv oth.r d.itv. or bei"].. lub- ,iea to any i)enalty ol the laws of the United States, on any account whatever. ° Jsim:i-i. there is no end to the abfurd confequonces that would necellari.'v refult from an eliablilhrneni ol the defence let up by the Claimant, and it mult be evident that he <.i.ly rule that can be laid down confillently with the laws of aiul the treaties between the iwo "ati.ms IS that there can be no trade lawfullv carried on in thefe waters between the yedels of lbs Majeliy's (ubjeas and of the fubjeds of .he Inited States, which it would not be lawfu lor the former to carry on in the ports aiul harboun of the Unite.I States, and lor the latter, in the ports and harbours of His Majcfiy's dominions. Tins would leave the right of Navigation free, and the waters entirely open to both parties for every lawful purpoie ; it would not interrupt any communication between he vellels of the fame nation in any part of thefe water.s, and woul.l ellectuallv prexent the violation ol the laws of either; confequentlv, in whatever part of tliefc waters cither a hrit.n. <..; American vefTel fhould be found, the one diredlly or indiredHy tianl.^enin.. he laws ol the nation of the other, it mult be lawful for the proper ofli.e; of .he"nation v^holc laws are Iranlgrened, to lee thole laws enforced by fuch feizures and prolecutions as are direcled lor that purpoie. KvKN the above rule is laid down, under a fuppofition, for the fake of the argument, hat Mo<, le-KIand Dudley-Kland. and Frederick-Kland, belong to the United States, con- iKlcnng their polleflion as equivalent to a title in the prefcnt difcuHion. Wf.u, iiiight His Grace the Duke of Portland predirt that, although the doubt fiarted on the part of the United Stat -s " pnmarilj went only to a prefumed ri-rht of water-way or navigation to their moiety of the St. Croix, yet that it was n/lu>,,;/./,/ intended to de- cliice therefiom as a further confequence, a right to the Klands in Pallamaquoddv-Hav lying on the American fide of fuch water-way or navigation/' among which Illancis; tampo-Bcllo as we have leen, was included. Tins prediaion we now fee amply verified, in the courfe of fix years from the date ol his letter, and if fuch claims are fubmitted to, the tacit acquiefcence of Great-Britain in hele allumptions, will foon come to be looked upon as an ablblutc acknowled-nnent of he title, and we know not what farther pretenfions may be advanced and perfilted in in the lame manner. * ■ . " Although, if the foregoing reafoning be corre6>, it is totally immaterial in what parti- cular part ol the waters in queftion, the Sloop now under profecution was lyin... at the tune her cargo was laden on board, whether on the Britifii or American fide ol'the fup- poicc line agreed upon by the Cuftom-Houfe Odlcers of the two nations. 1 will nevei- helels, proceed to examine the evidence upon this point ; premifing that the teflimotiy taken on the part of the profecution, has been principallv with a vfew to li.ew the im- portance of the trade thus (as we contend) illegally carried on. and the extent of the niilch.efs and inconveniences rcfulting to the Britilli trade and commerce, from the prac- tices avowed and juftified in the Claim now before the Court. So alarming indeed have been the cffbas of thefe injurious praflices, that they have danned the ienous attention of the Houfe of AITemblv of the Proving who, i.{ their SefiTion in lebruary, I803, pafled the following Hefolution :— " Kesolvld, that an humble Addrefs be prefented to His Excellency the I.ieutenant- " Smv"7'/lA''i"! '^u-^'n 'i!^ .*?" I''""*"'^^ '° ^'''^ ^° "'^ Majefty'sMininers the ne- cel tv of an Aa olthe Bntifli Parliament, compelling Malle.r of VefTels lading Plaillcr ,, of I aris or Gnnd-flones at the mines o^ JYov.,-Scot;.-,, Mtc-Bnmswir/c and in the 6',vM « t *f' "7-^-'f' ^;:. to give bond to the Officers of His Majeflys Culloms in the dillerent lor s where thie fame (hall be laden on board, not to land or unload the fame in any " h*'/l!'. "r ir'v ^1''' Aincrican States to the Northward and Eadwaid oU'ortland, in the State ol Mallachusells, or ifl any Britifii Port, but for the purpoie of being re-fliip l)ea on board Britilh veflels, who fltall give bond as beforementioned, not to land the '4'!,Tk."'.''7-»"7;"';"''''K''"'' "''^•''^ ^'"'^^^'^ States of America, to the Northward and liallwaid ol Fortland, in the State of MalTachufetts." ' wr!oIH"iri* 1 'ft ^f -"'n' "'' Excellency was pleafed to fay. " that fepr.fcntations ^vould be made to His MajcJly's Minifters accordingly." >f iraili! niiU navi- 'di'Is, .i( the plnrp > Hriridi vtllcls fo otlu T ;;()()(ls |)n)- els, into this I'ro- ■' V»r ivlJiV""' T '"'"".'"« Culiom-Hour.' ..Ifu.r at I'.dlamacnoddv th- IW ii.U . 7 vi '"" .'*'* Amenca.j wholly „n,trn/Jrer or co,n>,„n for boti nation t^ „ 2 'l' '"/ ';":7 '" ^^■"^'^ n,eh agreement .a, alio proved by thn^^md,^;;' ilb ^^^r^'''' '''''^^ " .J;it ;:ii ';■ hi:;;;;';;;" ;w;;:;;ir':;:;:r"'r' ' ^'•'•"••'•'i -^^^ " -^ -^ -- E^::;ri;;-tS:.r^^^^^^^^^^ ;:;::;K'^;::!rrt^t't;;;i ?^ for feveral vears p rt i Ls 1 ee, . I ilM ' ,"' '^ "''''""'■"' '•'^""■' *" '''^'^^^^'' "'=" >/. of a line Lwn ^ ^.^l^^Z^t^t^i^^ ' "^ """'f^S'-'' >'"^ ''" 'he./- two Ikitifh vefiels from whic h the ea io .7hJ "JI f 1 ■'"?* ^"^''^^"^ ■' "''''^ '^>« fiTc Province of Vov Wl. i ^ , P ""^^ '"'**"" ^" '">'■"•''- '-"rived from appl;;:dtr:;^5:pSi;Se!';:;^' "^f 'i' ';""'^ '"^''-'^"'' of g,.,,„./?<.^, ,n..nd " is cSm ,f^4il^/''p^''f ^-'^''''^^^^^ '^y '■"'■f> «=l''"'nnce the American v.del 2J iiflom-IIonfe are fubjea to a dutv of one doll; veflels after obtaining thefe for r j)cr Ton. — That the ,\nier Situations in any refpefl, proceed to take the eign clearances, without any removal or a!tt iin- t| irnn leir tnence proceed to any part of the United-States n cargoes on board from Britifli NclJelb and From 99 Ihom the tcnimony of .he Hiiiin. Cufiom-Ho..r.' oir.. ers it .-.pp.Mre.l, •• .h:,f .he nritJll, cly. into ,ha, ,,..rf of the Mri.ifh territory l,orclerin« upon tht- i:.,) al Mates, r •.' uW v e - ter and clear at the ISntilh Cull jin-Iloiife," r.^uiariy en Johi, >,ls , itnelH produretl on the part of the I'rolen.t.n-. depo .1. " thai he h a Uranc h I'dot lor the Port of Sain. John an.l ,n the Hav of Fundy. ind h s In lo e „' ' phjyed nearly U»cc the lirll ereai<.n of this Province of New-Hri„lwick and tr lu • ;wr( ar,ua.nted with the weller,. paflage into l^dl:u„:up.o.ldv-l^ v o 'rw t S^ S ' Atulre.s Hay. by Well Quaddy h, ul fo ..lied, and that .he'faul-^vellern p li « the pal ao.. ^.onerally and al,n.,ll ,„ all inllanres. made ufe of by An.eri. .n v (feK tr lit)^ "7, TTr^ o '"'• ' ;"" ^""'^-"'^"•''- '^'^ nver Col.leo.ik and the riu. Sn.,ld J^ that the laid wrilern i)ana;je is m,„h more convenient than the eallern pallaue for \. •' he T'.u? v' . "■" r"^' "'"' "='^'«;'"!'« •" •""• '■'•"'" •I"' pin. e. above mentione.f becaufe ^^ aj,H and alio becaule the American Ciillom-Monle is litu.ud on the f,id pali;,.r,. .Lv y about the rentir of the narrow part of it, and the IVui CillrMn-Houie isVervlliHlrult of acres to a I vellels ,<.mi.,;r thronoh .1,0 eallen prlla^^c -.r.,,, laid, and it isthe o ;; ""•>.«' 1 .us deponent, that the laid American Cnliim-Ho.ife is .luis lituated as nf!; - laid lor the ( onvenience ol the American veni-ls , onMi. ; throu-'li the wellern n.lIV,. ' . orelaid, and that he has very leldom know, Inch American velle s ,. ie'o ^ other than the wellern panage aforelaid- ,', . i, fometimes happens, when lu h efl'7s are bound into the paces above mentions, and have the Juli from the N"^->"'d '«'''^e, and there fliould be a lulficicnt dep.h of water to carry them through the laid weller,; padhgc'' Mr. Mills, upon his crofs-examination on the part of the Claimant, fays, " tha'f the conrle ol tne principal channel from that par. of the river St. Croix, (otierwife called the ' Sc^odiac between J •-; 'on. near St. Ai Irews and t!.. oppofite (hor<. to .he 11 u'- ter which are called the H.- .rpundy, i s lollows, vi/. from Joe's Point afo elb d o Clam Cove lu^a , :. .p lc.<. the Nor.hweltern extremity of Deer-lllund, fo c^ cd hence between eer-iiland aforefaid, and Moofe-Kland, fo Vailed, thence leaving Mar vel- land lo called, on the larboard hand, between Wind-mill Point, fo called the Northwellern Point of Harbor De Lute, fo called,ni,d a finall Illaiul called P.,pes Folly henec between Caico Bay Illand, fo called, and Campo-Bello Uland. fo call'e.i thence between Head Harbour fo called, .he eallern exiremi.V of Campo-lJelio Kland afo e' faid and Spruce-Ifland, fo called, into the Bay of Tund) ." th. iTa P'""'^!^°^''^ defcribed by Mr. Mills, is the fame which he calls he eallern pallage .n his depollt.on upon the direa in.errogatories, an.l is the fame tha lb delcribcd by Judge Benlon, and recited in the former part of this argument. The whole of the teftimony in the caufe was difculled very much at large, when the nrgument was coneluded w.th the followMug animadvcriions upon t!>e foreign dea ttc ' and the oblervations lubleqiient thereto.] ° '"'""'^' t.n :!'!!. '"'""'^'"'^^'^''^.P'/' "'' I'''' ^'■S"'"-"t. ^vhich precedes the introduaion of the tcfl.mony, were made before I had looked into anv part of the tellimonv, and lo ex- he cTmmdti 'T fPP!:-d.to n.e,>/. a ri^ia as now appea.. to have been in of the doarine which I then fuppofed would be the utnroll that would be contenS /or HI the Claimants defence, was in my mind an irrefiltiblc proof of the abfurditv of that doarme ; but to my furprife, I now find, that the Claimants defence rells, in the broad i^SeXtf^^/isr^i;^"^ '''-' - '"'"' "°' -'^' ^>' "^^^ -' -'-- ^-- ' '^ * Inis I 0(1, ■• fh;if thcnrltifli fs ol'lhc l(.i\ oll'iin- Statrs, n'^'i'ilarly en- cqucntly alliidod to, |)ol (I, •• thai he is a iiul lias l)«'fii Id em- Iwitk, and that he is othiTwili" calli'il St. clicrn pallajro is llic •ir;m vc'di'l-, trailing hv river ScoodJac — i/icrii |)a(Ia;.c' lor A- nu'iilioncil, bcraiifc ban the eadern paf- ir laid pairn^e iiear- oiil'eis very dillirult I, and it is the «)pi. s (itiiatrd as afore- the weliern pall'ii^u to make nl'e of any y, when I'luh xedels oMi the Korthwolf, Northweli wind in ifr nearly arrors the • ihe navi;,ra(i.>n of t as a IJranch Pilot 'M, and drawing; ai !■>, throiiirh the laid (i, I'liih wind bein"- e tills depouv'nt has aid Pilots have frc- Sh the laid welleni wind fair — that he iiid eonvcnient for and the wind fair ind convenient lor hannel of i!ie lai.l of water — and this Mitly to anchor in d make, and there weficrii pada^re." nt, fays, " that the itherwife railed the ore to the lirll wa- 's Point aforeiaid r-Ifland, fo called, cnce leaving Mar- int, fo caiied, the illcd Pope's Follv. , I'o called thence •ello Hlaad afore- iiie which he calls d is the fame that ijumcnt. t large, when the ['oreign clearance, troduflion of the nony, and fo ex- to have Ijecn in e//iiry corijeqiience be contended for abfurdity of that ells, in the broad ciillom, but even Tins I '^, mull enter at the Ameri- • (itild ot be permitted tu ' l;c permitted by the I :i -dl. v;itf IS, i^, in the flrfl IS wholly American, ', in the iaine manner ' '• coiilidercd bv the \) iiipiirtd to enter Tmm makei if npfclTary for mc to (nqnirc farther info the hcnlil,, of the richt thus claimtd. and to lluw the ablur.lities neccllarily rcfulling from fiuh daiu" ^ Mr. Delefde, ;,. , icdilics, " that with a \iew to the n,lv and nr,n„„„.,.h i .. r " l..ns concern. I .. „.,;;.,/,.,,. he abon, tiv years a.o X^ ^^Ti "T. '"■''; ••w.ththeOll,. :.of,he IJritilh Culloms „ PaM^m./quoi f r T " ^^^^^^^^ ' Z ll ' " \ 7' '■'"■^r/; ^^"^''"^' "'• "i'«i<* ^nre nnderdood t.. lie be, ,-ea t u lieMmu of (umpo-lhl/o on the on.- (idc, and the Iwnd-limlH of /W/l !. i " Mvnji' Idands on the other iule." He ..Iterwards a^s ' tL . ^y/'f/ =nd ;; .^^ h. hascontidere.! that (.uK HntUh^Hhi J^^^T^^tlr^liifZ " lubjiit to tonna-'e oi ')f ur dutv " So ihit hwl It „,.. i. "'"""'" ^*'"t'^. .witl not .h. le hritilh ven..|; would haw- Ln l^bj Jri. ' t^ . , "^^..th 'dil^ T'^T' togeth.er. as he tedilies, to one dollar per ton. Thi ' ^ t'il f ve Vvn 1 " powPMo be adtnned by a CuUo.n-.iou.c odicer. to U.;";:!''^.^*^!^^:^'^ It feems that the Ave// agree.nent. arrangement, or ac. omnHnlalion treats which Mr I), ehlern.er here Ipeaks ol, u, .„,/,■.,,,■>,;■ of .Juvh. he vsas „<, 'on.rcr to ^ „(i ', ,, ,h vedels .n theUY.v./..v/wat,r., as being r.d.jea to the America: cf. ty "d o ' 1. i. S ton, coidd not be earned into edcH without the coniriv, of'th, f, L '!" vhieh the Hri.ilh selK was to be difcharg^l from the,'!:; • ! ol thll S; '^''''"''' ^^ Tin: Brilidi vedel, if confidered as being in /Im ican w run Cudoin-lloure. and pay the diitv, otherwife 1 rh velu Uilcharge her cargo into an American vedel in thele waters. If rnnjldcred as being mi liriti/?t waters, fuch vedel touM P.itid. ( ultom-lioiiie to dil, ,a.ge her cargo into an Ameri... _ To get over this dimculf, the American ved'el arris in,, in in( ance conlidered by the Anarican Cudoin-IIu.ile as beini; and IS accordingly ie(|uircd to liter at the American Cudom-ll as the IJntidi \edel arriving in he fame wafeiN is in the lirll in I5ri..d,nidoni-IIouleasbein^^ at the Urilidi Cullom-lloule. The next dep is for the Amc. ran vedel without difchar-ino . (he happen to have a cargo on hoard to give in ex< hange^o,' n .ntdh Pia.der) and without any alteration n, her ;itu, uon, after having entered from h( a vo n e •• t American Cudon.-Ilouie, to appl^ lor and obtain 1 a nuZ of hS'L fn^^^^^ tudom-IIoulo, a foreign clea.anc. /.,• HauU Jn,lrv:cs, for the fame .v > refnSiivelv'to'r I ''"'I f^ "T "'"'"^ ''^'^^ ''^''^ ""'•'^'' '^''' ''««'""" "'"« treaty arc r f, c . civ to lade, unlade and ex, ,nge their cargoes in thele waters, Much at th s ,'e- cacL ctier/"""^ ^ "' ""'^"'--"'■- '-'-^-'/' -« ^t length brotighi into cc^UaJ" w'.th Thp operation of the foreign dea aue is now wonderful, without anv removal or al S ^iv" |r,t:i^';"'; "'^';'^^-" '- -"^'^ - --y rdpe^, IVomtV^^on. ; n . ? V 1 r '"^''' ''"'' '■"•'■y ' ^^^ Cudom-Houfes of their relpeaive nations • on a ndden, thele wale.-s to the Amen ,n vedel become /.mov/ and lhl>/k\hSTm iededly on all hands a Pritidi Port in the Province of Nevv-DrunUiT- I^mIT, - I i^™;;i7- n" " '''^ """f ''^'^ ^^'"-"' eviciiiti^^^at th:::':!;,o o^p i :ir f o'nn 'n • ? r", '"'"'•^ '" "" '^^*"''»" ''"''' ^« '^ ^^""'^l ^^ otherwife liable to feiz, re r can v;ff rr " " 'TV-' '"'^ "".'^ '^'"'y- '^''-./--.-' '/-...c. then, to the A ^e- uan vt^ld, translorms thele waters fn :n American or i^eutral, to lirit.d, whil Hu- J me waters to the Hntdh vedel remain n. itral, and farther becomes leg 1 fa is ado v ?l' e tlnt?t"-was d° l''\\''"'''^' f'' '^' '' ^^'^'^'^ "-' American^edel ca ie .i-^ Ke' M..' ^•'•s adually taket> on board at St. Andrews in the IJrilill, Province of ^:t::^t u:^v:^;: '^' '-'^ ""' "^ ^'-^^-^ '""---' '-'^'- "- Amencau'v^n- 1 of thrrn!tVdttnt"''r 'tlTT ''■'" "^^^^ ^"'"Pjete and legal evidence in anv Port 1 den ol tie. ''•'•"'' '^^ '''"■^'" '''■'>" '^•-^ •'"•■'«'' 'hat lurh cargo was adually 1 den on board the Sloop ,n a IJritidi ProNi.ue, is api.lied for and oirtiined b tl e li^;t"d;;;;."" "" """"' ^"^"'"^ '' ^^^^"^ '"»- ^^^ ^- -• - revenue of thetolag!. an^ Most righteonfly then dull the fame clearance be conddered in this Court as cnm -the^mn of ^ra^^ '?'" of hardlhip, and all pretendons to i.ululgence on the part ol tlie Claimant in the picfciU caule, for a more grols abule of public ii clear- •II H It may not be nnpropcr here to remark the abfurtlitv of the application of the enl- the nrntral to thefe or any other waters in a tin.ilar titi.ation ; lu I, IVo I ehu. i'/,/V / .'r belonging XonatJur power, by the Claimants own thewino. ,hev n t be S„ < ed for he acro„.p .Hnnent ol lus purpofes as wholly and altogeth", UnJ ut I r ' what is contended or on the part of the Chmnant, would m.t render .he le w. n- ^ W .t would neverlhelels operate to the extent of making them to be>.r 1 ■/!• in e ' t'"' '.OiP»o tons in 50 veffels by a computation from the Tuf- tom-IIoule books .„ h.s poneffion," and we know that there was a confirarch, 'rteil, and that pd in that ac- erage does irjt links the grerd o-Bello, as the 11 the iheam ;" coiiflantly rin- ployed \ I ploved in rarrvuiG; "real rnitcd States, prob.^i^l^n.? ^s nLn^ " ■ " • f "" "' "^ ^«'>l''n^Pti"n i'. the tons; but Ihe'owners-of lielb eS Vo ' t <"...putation. than ,0,000 ;o ex,en,ives into carrying the Plailier to any otha- part the [ 1^1 ""•' ''c'l'^ ^'" "'^' ^^'-"'"^ ^''"i-'^ one dollar per ton ; and lafil t n^ he \n n iv f " "■"' '"'^J'^' *"' nmonnting to in the watel-s in c.uellio t de t^ie en " ."'"t;"'^ '""^''•"' '" "'^' '"^'"^- pla-e tiaband articles i, ev h n-^e o, n SSIm oHl " v' '•"'" '""'"' '''''^^' ^iving'con- laws of trade. °' ^" ""''"*''" "' ^'^'^ Navigation act and the other Briti/I, one principle! nanielv! o \ ic n , rn'iol^r''" "."i""'^: ^" '" "'"""-• '- ^'I-" country at'a .X'ciuced pri e, an ^ iS^ nidilpenlable ufe in !hat -c.., obiec. in comp^rilon With :S:h;r^:eS;r;^^^^^^^ Iniall, this article was fold bv the Ir , 1 i ' M '""^ ''"' " ^^''''^ co,np,,,,ive|J phin. /Vom .0 to ,. doilai' peMon t is u i'TP'"^ ? ^" ^?':^'°'-'^ and Philadef- Pi-c;, which makes a dineri.e in t ^^ of'^x "niclt'ol- 1 1 i'" '"'' '"" '" ^'""'^ riu-ate ehimnte and probablv m h I ' ""'^ Provinces, which is a very mo~ lofs of 1,-0,000 doll s p -ar,m Ue'?J^^^ "f'^' '" ■■'"P"''"'' "^-^ '^ - con/idorations above allE-d ?". ' "'^ ""-' ^""^'^"^ ^^-^clunvely of the other Tmi:,:e is no doubt entertained by thofe who are ii-it ^^^^^:'^:fSr^^ :.. this fade is, that lids for the American vdiels it i nn mi ,' lb -^ ' ''' <^ampo-lJcllo, in readi- PCT ton bv the ]]ritifh velfe / ft c^a ' ^^ ^^'^^'f •;>" ^;^'>a price of three dolla.^ |o"s; a:.i even ,n the (hort i en mt o 'It ^ n^^^^^^ "" I'hihuleiphia at fuch fea- l\v liis Maje/iys Hoop of wa. the Lin > ^t ^ V ^'"''"•-/h' la Mummer, occalioned tini coalters from carrvin.. the PI,- " '^t J ahamaquoddy, whuh deterred the Rri- 1-Kls iniprelled ; the b Hm ^IHs rviriV /^l 'T' ''"""^ ''''' '^^"- "" '^-"'^ f'''-' of one dollar per ton in Tp ice Zn S^i " "'r' ^ ""^'^^ "'"^^"^'' ^" ^^^^^^^^-^ a""fiolher pu/to this illegal le \a d h ' r - " "r ?. ^"''^ T'"'"'^' ''" ''' '"'"P ^^■-- he, to Pri.i/h veffels, that^not only ; „ 1 > ' i " ""^ f'^'^^'f'^'e conlined, as it ought to from -,. to . dollars per to, lu rit n o Sc -^ 1 1"'' '"'''■' ''' "^"'■' = "'''' '" '■-' P''^^' o'' Ca/h, and thereby the c.intim, d "hi c^ HV ni'dr "' " """''' '^'' P^"''^ '">• - ven.ences of which have of late been folStibhS, '"""''" P''^'^^'"'^'^' ^''^^ i"''""- the:n:,e^:l^:::;.l::,'rr;;- h^;;fn'';r"^T"^^ '>-' <-- '-le; bv opened for ,!,e adm^hon , tee V^C^. '7"'''^'^^' '^' ^^ "^'^ ^''^''■•""^- ^ ''-"• ^^ O^irits, teas, and every othe .Se of .lii;'! '■"''''' ^'"' ^■'"''""''' "'' ''"•'•'^'> '''•'-'"'"^•'^' tifli merchant and trader. P'oh.bitcd commerce, to the ruin of the fair I3ri- I^riti/h territory, harin- ^x^Ml^r'^'\^f''i^ '''"■^' "'''^'^'^''-'ri";;- part o" the have been legally inipor e J l^ie P o^^ ''• T' ^" ^"' =' '^^ '^ -''^Pi-'^ ^'at to have them filled aid re linfhe ;,;;"'' '""' «'H-,r appropriate marks upo. :hc f.,s for years together, .i/hSu'JlS •";;;-::;:;:-^ '-'" '^'^ ^^-•^- ^ v icm, ef- How many other wavs all the Inhabitants of thefe Pr terchange of ca; once admitted .' are there of diltribuiiniftv of He; ven 26 H vcn to this country, calculated to encourage its fettlcmcnt, promote lis iiucrcds and in- crcai'e its confequence, if the advantages to be derived from it arc diiis arteudcd to and fccured. — The exiding laws, I humbly conceive, are fufricient for ilu- puipolo, if proper- ly enforced; but fhouid I l>c millakcii in tliis, I hope that thr diH iiilioii ol this ciiii'e will give rife to other regulations from competent authority, \vhi( h ui!l onahic us fullv to a- vail ourfelves of a fource of profpcrity, which promifcs ere loni; to be incalculabre in its extent and beneficial confeqiieiu:es. I mean not however to urge thefe as confidcralions to the Coiiri, in ijronoiincing its decree in this caufe, if the law be not with me; — but if I am warvanlcd in llic principles I have endeavored to eftabiifh, and the deduilions 1 have drawn from tliofo ]>iiiu iples, it is jult and fair to enforce my argument, by dating the mifchiefs and inconveniences that would refult from the edabliflunent of the claim now before the Court. Well might this trade be thought an obje6l of fuflicicnt magnitude to merit the at- tention of the General Afl'embly of the Province ; the lame vievv of the fubjecl and the fame renfons which I here humbly fubmit to the confideration of the Court, indut i-d tiu ni to apply for the mod efl(j6lual means of annihilating this trade by an art of rarliaivwiu. to prevent the landing of Plaider of Paris exported from thcfe Provinces, in a"v pu;t of the United States, to the Northward and Eadward of Portland, in the Stale of MilThrlui- fetts, though it is much to be doubted whether any place to be name d lor this purjioi'c to the Northward and I'adward of Connetlicut river, would jirovc an cllccliial remedy for the evils complained of I come now to the point of the caufe from which I fct out, namelv, tlie charge in the libel, that the Cargo of the floop Falmouth, now under profecution, was h/li^u on board the faid Sloop in the County of Charlotte, in the Province of New-Brunl'wicii, and within the jurifdiflion of this honorable Court on the '22A. Oftobcr latl, the lame Sloop being a foreign built velfel, not owned by His Majelty , fubjetls nor navigated according to J,aw. That the Sloop is not Britifli, but foreign built, and owned and navigated by foreign- ers, is admitted on all hands. The only remaining quedion then is, whether this cargo was laden on board tlie Sloop within this Province. I might poffibly be judified in indding that the Claimant can no longer be permitted to controvert this fafl, having fubmitled to the jurildirtion of the Court ; and that he fhouid have availetl himfelf of this ground of defence by a plea in abjtenuMit to its juril- dif^ion; for this Court can have no jurifdi61ion of this caufe unlefs the olTcnce ciiargcd has been committed within the limits of this Province; but waving this, I wiii biiclly re- capitulate the evidence there is in the caufe of this fart. — It has then been fliewn, 1. That all the Iflands between which the waters flow, in which the Sloop was laden, belong to Great-Britain as a part of the ancient Province of Nova-Scotia, and as fuch cx- prefsly referved by the Treaty of 1TS3, 2. That the King's charter, ererting and edablifliing the County of Charlotte, and the art of the General AflTembly of the Province for dividing this County into Towns and Paridies, have confirmed this fart by exprefsly including all thefe Iflands within this County, and within the Parifli of Wed Ifles in the fame County, 3. That if the right to thefe Iflands can be in any manner aflTerted by the declaration of the Commidioners under the .5th article of the Treaty of Amity, Commerce and Navi- gation, refperting the mouth of the river St. Croix, (which I have endcavou-d to fliew it cannot be) this declaration confirms and cdabliflies this right in Great-Britain. 4. That not only all thefe Iflands belong to (Jreat-Britain, but that of necefllirv con- fequence the waters in quedion flowing between them alio belong to Great-Britain. 5. That admitting for the fake of the argument, the poflTeinon which has been taken by the fubjerts of the United States of three of thefe Iflands, to wit, Moofe Ifland, Dud- ley Ifland, and Frederick Idand, to be equivalent to a title to thefe Iflands in the United States, neverthelefs, by the edablilhed principles of the law of nations, even in that cafe they can claim no right to any part of thefe waters beyond the middle line between Dud- ley Ifland and Moofe Ifland, in their podeflTion on the one fide, and Campo-Bello Ifland in the pofleflion of Great-Britain, on the other. G. That even this claim by the fame principles can extend to a right of water-way or navigation only, and not to a right of carrying on trade with Britifli fubjeits and their veflTels in thofe watei-s. 7. That admitting even that the United vStates have a right to trade in this manner as well as to navigate on their dde of fuch middle line, it is proved by all the tcdimonv in the caufe, that the Sloop in quedion was clearly on the Britifli fide "of fuch middle line, and therefore without the protertion of the law. Presuming then that the Court will be of opinion that the cargo of the Sloop Fal- mouth was laden on board, xcithin the limits of this Province. " No W. itcicds and in- ttonticd to ami [»()lo, if propcr- I lliis caiii'c will L' us fully to :i- ■;il( ulabic in itii irononncino- its ihc piiiici])!es c i>riiuiplcs, it ivenicnces that 1 merit the nt- riibjccl :mil the t, indiuiil tiiiri of r.-irliaiviriir, , in :i"v piivt of e «!' Vl/iil'arlui- or this |nirj)oic leiUial remedy ic rharided. It is admitted t'lat the Sloop is an American vcfTel, owned and navigated by citizens of the United States ; of courfe a foreign veflel owned and navigated by foreignei-s. The cpieftion then arifes, can fuch foreign veflel enter any of the ports or harbours of this Pro- \incc, being one of His Majedy's Britifh North American Colonies, and carry on com- merce in the fame ? It is acknowledged that every nation has a right to make whatever commercial regulations it may think proper, and in the e.\ercife of this right Great-Britain has thought dt to ad'ume to herfelf the monopoly of the trade of her Colonies ; for this exprels jiurpofe federal Statutes have been paded, in which the legiflature feems to have had this objett coi'dantly in view. By the Statute of l !• Car. 'Z. c. \h. otherwil'e called the Navigation Atl, the palladium of Britifh commerce, which, to ufe the words of Adam Smith in his inquiry into the caufc of the wealth of nations, " is perhaps the wifed of all the commercial regulations of Kngland," all diips of which the owners, mailers, and three fourths of the mariners are not Britifli fubjeCls, are prohibited upon pain of forfeiting fhip and cargo, from trading to the Britifh fettlements and plantations in Ada, Africa, or Ame- rica. By this A6t England drd edabliflied the monopoly of her Colonial trade, fince which farther provifions have been made by the Statutes of 1.5 Car. -.i. c. 7. and 7 & 8 W. .'3. c. i.':2. By thei'e Statutes therefore all foreign vefVels are jirohibited from trading within this province of New-Brunfwick, being one of His Majefly's provinces in Britifli North-America. The United States then having no right by virtue of thefe Statutes to trade with this. Province ; it will next be inquired, whether they can derive fuch right from any treaty or convention with Great-Britain. V^attel fays, " a nation not having naturally a perfetl " right to carry on a commerce with another, may procure it by an agreement or treaty. " This right is then acquired only by treaties and relates to that branch of the law of na- " tions termed conventional ; the treaty that gives the right of commerce, is the meafure " and rule of that ri"ht." By the Treaty of Peace the Usiitei! States mod certainlv vver^r:h^^^^^^^^^^^ time, nue ne ther ol them can give any reafon for daimin- the nrclVrciu-c • and in V cale, the dominion of each will extend to the middle of the river!" F.10M thefe writers we derive this genera! rule of the law of nations that when fw, S t'S i ir^n "^'^ the oppofite banks of a nve.^ the d.ninio,; l^Z^'^UU.:: llnthV '"''-' '"■'''''"'• ^''^'■'^ ''"■" ^"'"^ exceptions to this -ener,! niic • h, t ccn this Province and the United States ? Jican <' jyernmcnt. The inhabitants of thefe St certainly not in favour of flic A mc- ti/h now under confidcration ; but thi empire, had a right in common with His Maieitys fubiec} tes, when they formed a part of the Bri- s, to navioate the waters s power did not give them an cxdu/ive poflcni on, nor did Imiticd into the I. :;- into any of iIr- ii- ■loiv, th;it they li.ive i()t (Icrlvo inch iii,r|,t II 111:- limits of (his botwct'ii tills Jro- lonii i)riiici|)li\ that ill r ("oloiiic.;, ill oi-- J be pn riiiueil, t!i;it inilctonniiu'il, as to -'oniincrcc in dii\.-cl riglit orGrcat-Rri- lio pollcUion ()('i!i;' «'riic(l !)y till' l':\d> ■n iir<'tl in fxplann- ()(■ t!ie Scoodiac, oi- thr (iftli arli( le of ch tho main waters the Day ol' I'luuly. , aiul f'ampo-IJolio s, and in icuw pla- :)n ()\rr )!ic Kl.mds WciVhiu of His Md- z-MLwl'tiie United •IIIiikI, over which ■ of no p;ihiic art I » \ rciird \)y ilu" a dilaviwal ol' tlio lii,!4"e or cIkmuicI a'i ' qwi'tiion tlieii, to -■iii.-ra! J.Msv oi Xa- '.vn b\ the moli a- nion as fir as the ieall till the con- ca are, nrcordin^^ ands they are en- he i'overeignty of ry i)art of the re- II fe the whole wa- I niidi\idod Ib- ple has obtained or by the ric;ht of 'x.iv It in full pof- )!)')re ; in which :'ci-s,fha!l he i'up- ca^ as tiic tonvc- 1 fjc'e reach to the ippened that the not gQt poOef- idy in complete by Treaty." lie river, ifnc!- inhcrit were the there at the fai^ie ■nee; and in lliis ;, that when two (i! each will rv- 'iieral niic : but )f the boundary nir of the Ame- l)art of the Bri- ,i; ate the waters ; poficliionj nor did did they therel)y acquire dominion over the whole. The mother couiury in ackiiow- leJ;^in- the independence of her revolted colonies, had a ri-ht to prefcribe their limits • iiidoin^ wnich, (he was bound to confnit the interell and prefervation of that part of her empire, vvhicn continued in its allegiance. The I'rovince of Nova-Scotia adhered to the eaule oi the mother country ; the wcflern limits therefore of that Province it is ore iiimcd, were by the Treaty of Peace, made the eallcrn boundary of the Initeil Sf.tes - and the exception in :he Treaty of Inch Ulaiuls. as before oral the time of the Treatv ol Peace, were within 'he limits of the Province of Nova-Scotia, liren-Mhens this ore iiiinj)lion. Hy thele limits therefore, mud the United States be governed Tint thev conlidered Deer, .Marvel, and Campo-Bello Klands as once \\mn\n